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J. MILLER CO. AND SELECTIVE INSURANCE COMPANY v. SAMUEL E. MIXTER (05/25/71)

decided: May 25, 1971.

J. MILLER CO. AND SELECTIVE INSURANCE COMPANY
v.
SAMUEL E. MIXTER



Appeal from the judgment of the Court of Common Pleas, Civil Division, of Allegheny County at No. S.A. 376 of 1970, in case of Samuel E. Mixter v. J. Miller Co. and Selective Insurance Company.

COUNSEL

Irwin M. Ringold, with him Alexander J. Jaffurs, for appellants.

Thomas Hollander, with him Evans, Ivory & Evans, for appellee.

Judges Crumlish, Jr., Kramer and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 2 Pa. Commw. Page 230]

In this workmen's compensation case, the only question before us is whether at the time he suffered serious injuries the claimant, Samuel E. Mixter, was an

[ 2 Pa. Commw. Page 231]

    independent contractor or was an employee of the defendant, J. Miller Company. The referee made an award in favor of the claimant. An appeal was taken by the defendant and compensation carrier to the Workmen's Compensation Board and this Board affirmed the referee. Thereupon an appeal was taken to the Court of Common Pleas of Allegheny County which affirmed the decision of the Workmen's Compensation Board. This appeal followed and we reverse.

Few can, and none should, be insensitive to the personal tragedy that befalls individuals. Such a personal tragedy struck the claimant on September 3, 1967, when he was engaged in making repairs to his tractor which was parked at the time in the driveway by his home. It is not disputed that the injuries sustained by claimant when the right front tire and rim assembly of the tractor exploded, striking claimant violently on the head, were permanent and disabling and resulted in the loss of sight in his right eye. The realization of the seriousness of such injuries and that claimant has not been able to work since the accident naturally engenders such a degree of sympathy that it is difficult to be objective about the legal status of the claimant at the time of the accident. It is understandable that all charged with the responsibility of determining the claimant's legal relation to the defendant, J. Miller Company, at the time of the accident would have a tendency to reach a conclusion that would result in financial benefits to the claimant, as opposed to a conclusion that would leave the claimant to his own resources to cope with the serious consequences of the injuries which he sustained. However, the determination of the question as to whether claimant was an independent contractor or employee at the time of the accident must be made in accordance with established legal principles and the terms of the contract

[ 2 Pa. Commw. Page 232]

    entered into by the parties, rather than upon a basis of empathy.

The courts have not formulated a hard and fast definition for the determination of whether any given relationship is one of independent contractor or that of employer-employee. They have, however, set forth indicia of such relationship to be used as guides in making such a determination, some of which are: Control of manner work is to be done; responsibility for result only; terms of agreement between the parties; the nature of the work or occupation; skill required for performance; whether one employed is engaged in a distinct occupation or business; which party supplies the tools; whether payment is by the time or by the job; whether work is a part of regular business of the employer, and also the right of employer to terminate the employment at any time. Feller v. New Amsterdam Casualty Co., 363 Pa. 483, 70 A.2d 299 (1950); Johnson v. Angretti et al., 364 Pa. 602, 73 A.2d 666 (1950). These indicia are not to be considered as circumstantial in nature and whether some or all of them exist in any given situation is not absolutely controlling as to the outcome; each case must be determined on its own facts.

To be entitled to compensation the claimant had the burden of proving that at the time of his injury he was an employee of the defendant, J. Miller Company. Herman v. Kandrat Coal Co., 205 Pa. Superior Ct. 117, 208 A.2d 51 (1965). As stated in Sones v. Thompson Furniture Co., 163 Pa. Superior Ct. 392, 394, 62 A.2d 116, 117 (1948): "The relation of employer and employee, as contemplated by the Workmen's Compensation Act . . . arises only where there is a contract of hiring, express or implied . ...


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