Cromwell General Contractor, Inc. v. Lytle

439 S.W.2d 598, 222 Tenn. 633, 26 McCanless 633, 1969 Tenn. LEXIS 467
CourtTennessee Supreme Court
DecidedFebruary 14, 1969
StatusPublished
Cited by20 cases

This text of 439 S.W.2d 598 (Cromwell General Contractor, Inc. v. Lytle) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cromwell General Contractor, Inc. v. Lytle, 439 S.W.2d 598, 222 Tenn. 633, 26 McCanless 633, 1969 Tenn. LEXIS 467 (Tenn. 1969).

Opinions

[635]*635Mr. Justice CresoN

delivered the opinion of the Court.

Cromwell General Contractor, Inc. appeals to this Court from an adverse judgment of the Circuit Court of Rutherford County, granting workmen’s compensation and medical expenses to Allen B. Lytle.

The parties to this cause will be designated herein as they appeared in the trial court; that is, Allen B. Lytle as plaintiff, and Cromwell General Contractor, Inc. as defendant.

The controversy presents one issue for decision— whether or not plaintiff was an employee of defendant at the time of the accident; or was, as a matter of law, an independent contractor.

Although correctly described as a general contractor, the defendant corporation has specialized in masonry work for approximately twelve years. The corporation sub-contracts to do masonry work within Tennessee and within a radius of 100 miles from Shelbyville, Tennessee.

[636]*636Plaintiff does both, farming and construction work. He owns a small farm in Rutherford County and for three or four years prior to the accident, had worked as a “brick washer” at various construction sites. As a “brick washer,” plaintiff removes stain, dirt and excess mortar from the facades of new buildings. Brushes, scrapers, acids and cleaning solutions are used in the process of cleaning brick and stone.

The accident giving rise to this action occurred December 30, 1966, at Columbia, Tennessee, when plaintiff and a helper employed by him were cleaning brick from a “hanging scaffold.” The scaffold gave way, throwing plaintiff and his helper to the ground, some 24 feet below.

The work relationship between plaintiff and defendant began in May, 1966. Plaintiff approached defendant, stating that he was in “the brick cleaning business” and inquiring whether or not defendant had work of that nature to be done. Plaintiff and defendant agreed, orally, that for $600.00 plaintiff would undertake to clean all brick used in construction of a hospital at Tullahoma, Tennessee, and to furnish all required material. At or about the same time, plaintiff told defendant that he would undertake all of defendant’s brick cleaning for $6.00 per thousand. Generally, the oral understanding reached in May, 1966 continued to govern the relation between the parties, except as hereinafter noted.

In connection with the work done at Tullahoma for defendant, plaintiff supplied all materials, hired two workers and paid their wages. Thereafter, plaintiff also cleaned gray brick at a Junior High School in Clarksville', Tennessee. Plaintiff was paid by defendant at the rate of $6.00 per thousand brick cleaned. At Clarksville, de[637]*637fendant fnrnislied scaffolding and a portion of the acid used in the cleaning process. Plaintiff furnished brushes, hose pipes, a portion of the acid, and hired a helper whose wages were paid by plaintiff. When the work on the gray brick at Clarksville was completed, plaintiff went to Portland, Tennessee, where he worked with another contractor.

While engaged at the Portland site, plaintiff was requested by defendant to return to Clarksville to wash white brick used in construction of the same Junior High School. The parties had great difficulty in cleaning the white brick and were obliged to use various chemical solutions in achieving the desired result. In connection with the cleaning of the white brick, defendant furnished lye, soda, detergent and acid. Plaintiff furnished brushes and scaffolding. Defendant apparently demonstrated the use of certain chemicals for plaintiff and two other men hired and paid by defendant. For his work, plaintiff was paid $6.00 per thousand brick cleaned.

The difficulty with the white brick used in the Clarks-ville School was apparently so great that a rewashing or recleaning was required. For rewashing the white brick, plaintiff was paid $3.00 an hour and furnished by defendant with materials and help.

Defendant apparently communicated frequently with plaintiff, informing him when and where brick were to be cleaned. Defendant’s employees sometimes began washing brick if plaintiff failed to begin the work. Grady Cromwell, an officer of the defendant corporation, testified that he had no control over the time at which plaintiff was to be at work, and that if plaintiff were late, other men would begin cleaning brick. A building at Columbia, [638]*638Tennessee was thus half cleaned before plaintiff arrived to complete the wort. In that particular instance plaintiff was paid for washing half the brick.

Defendant withheld neither Social Security nor income taxes from plaintiff’s checks. Plaintiff’s 1965 and 1966 income tax returns stated plaintiff’s business name as Lytle Contractor. However, plaintiff testified that an employee of the Farm Bureau completed his tax returns for him without his instructions.

The record reveals that plaintiff cleaned brick for a number of contractors: L. L. Poe, L & M Contractors, T. P. Martin, and a Mr. Hart. Plaintiff was paid by them on several bases: (1) Per 1,000 brick cleaned, (2) per square foot cleaned, and (3) per completed job.

The trial court concluded that plaintiff was an- employee of defendant within the meaning of the workmen’s compensation statutes of Tennessee. The decision in the trial court rested on reasoning (1) that defendant had the right to fire the plaintiff, (2) that defendant had the right to “dock” plaintiff’s pay, (3) that, consequently, plaintiff was subject to the day to day control and supervision of defendant, and (4) that — apparently—the work performed by plaintiff was an integral and necessary part of the conduct of defendant’s business.

The facts of this case are undisputed; consequently, characterization of plaintiff’s legal status as either an employee or an independent contractor becomes a question of law. See Brademeyer v. Chickasaw Building Co. et al. (1950), 190 Tenn. 239, 229 S.W.2d 323; Seals v. Zollo (1959), 205 Tenn. 463, 327 S.W.2d 41. The case turns, not upon conflicting evidence, but, rather, [639]*639upon the legal significance to be given to the facts as adduced before the trial court.

T.C.A. sec. 50-902(b) defines an “employee”:

“ ‘Employee’ shall include every person, including a minor, whether lawfully or unlawfully employed, the president, any vice-president, secretary, treasurer, or other executive officer of a corporate employer without regard to the nature of the duties of such corporate officials, in the service of an employer, as employer is defined in paragraph (a) above, under any contract of hire, apprenticeship, written or implied. * * *”

This Court has frequently stated that an independent contractor is one who contracts to perform a service or do a “piece of work” by his own methods and without control or direction by his employer, except as to the result to be achieved. See Odom v. Sanford & Treadway et al. (1927), 156 Tenn. 202, 299 S.W. 1045.

From these definitions, this Court has developed and applied a number of tests as aids in determining whether a particular work relationship is that of employer-employee, or that of independent contractor.

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Bluebook (online)
439 S.W.2d 598, 222 Tenn. 633, 26 McCanless 633, 1969 Tenn. LEXIS 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cromwell-general-contractor-inc-v-lytle-tenn-1969.