While it is conceivable that a person may have a servant in his employ as a foreman or supervisor with the right and power to hire laborers for the employer, and may make an independent contract with such foreman or supervisor *Page 799 by which such foreman or supervisor would, as respects the particular work be an independent contractor in performing such services for his employer, it does not follow as a matter of law, where such foreman or supervisor, as in the case here presented, was engaged or directed by his employer, as was Melder by the Sanders-Perkins Construction Company, to move the employer's own property, a concrete mixer and other property, which from its nature inferentially was essential to the performance by the employer of the work over which the foreman was supervisor, where such foreman or supervisor had authority to hire and employ men, although such foreman or supervisor may have used his own instrumentality, as his own truck in this case, to perform the work, and may have been paid by his employer a lump sum to do this work, and was himself to pay the laborers employed by him, that such foreman or supervisor, when directed or engaged to do such work by his employer was, in the performance of such work, not acting as foreman or supervisor of his employer, but was acting as an independent contractor.
Nowhere does it appear from the evidence that Melder's duties were other than those of a foreman and employer of laborers. One of the defendants, however, does testify that Melder was not supposed to hire people for the construction company on Sunday, March 9, which was the date the deceased was killed. This witness further testified that he did not know whether Melder was hiring anybody for the construction company on Sunday March 9. Construing this testimony most strongly against the defendant it does not show that Melder was not a foreman on the date the deceased was killed and did not have power on that date as such foreman to hire men for the defendant. The evidence is that there was no written contract between the defendant, the construction company, and Melder, and it does not appear from the evidence that there was any agreement by the construction company that there was no control as to the time or method of hauling the equipment, or what employees should be engaged by Melder in so doing. It is only a matter of inference, if any inference whatsoever of this nature is authorized, that the construction company had no control as to the time or method of hauling the equipment or what employees Melder should employ in hauling the equipment. The evidence shows only that Melder agreed with the construction company *Page 800 to haul this particular equipment for them at $20 per load. Nothing was contained in the agreement as to what employees Melder should hire or what control he should have over them. If he was foreman, as the evidence shows, all the time during his employment, which would include the Sunday on which the deceased was killed, he inferentially was acting as such foreman for the construction company in hauling the equipment, and whatever power and right he may have had to employ laborers or direct them in hauling the material, it was as foreman or agent of the construction company. The evidence is that Melder was drawing a weekly salary as foreman. This necessarily covered the seven days in the week whether or not it was customary for the company to do work on Sunday.
While such evidence might very strongly indicate that the relationship between the foreman or supervisor, as Melder here, and his employer, the construction company, was that of independent contractor, it nevertheless clearly authorizes an inference that Melder, when he employed Blakely, was foreman or supervisor with power to hire and fire as such for the Sanders-Perkins Construction Company, and that when he was engaged or directed to perform the service of moving the property belonging to the construction company, which was necessary to be used in its business, and which inferentially he, as the foreman or supervisor of his employer, the construction company, would, as foreman or supervisor, be under a duty to hire laborers to haul, in hiring the claimant's husband he acted, not as an independent contractor, but acted for his employer, the construction company, through himself as the company's foreman or supervisor to engage laborers for and in their behalf and with power to hire them. The mere fact that the construction company, Melder's employer, may have engaged Melder for a lump sum to do the specific hauling, and that Melder was to pay the necessary laborers and do the hauling, would not as a matter of law, in view of the other circumstances above narrated, constitute Melder an independent contractor. He could, as a foreman or supervisor for his employer, be directed to do this work and be paid therefor a fixed sum in addition to a salary which he was being paid for his work as foreman by the construction company, and out of this lump sum make the necessary payments for laborers, and apply the difference between the lump sum and the cost of *Page 801 the laborers to his own use in payment for this work. The payment by the construction company of a sum of money to its foreman, Melder, for the performance of the particular work of hauling, in addition to Melder's weekly wages as foreman, does not necessarily deprive him of the status of foreman and render him an independent contractor. A servant may be paid by the job as well as by the time. He may be paid a lump sum for a special service as a servant. Melder furnished his own truck. Notwithstanding he may have been a foreman he was entitled to pay as hire for his truck. It is not inconsistent with his status as foreman that, while being on the pay-roll at reduced wages during the inactive period, he should be paid a sum in addition to his reduced wages for supervising this particular job of hauling.
As stated by Director Tucker, in his finding that Melder, in employing Tyre Blakely, was acting not as an independent contractor but as the agent or servant of the construction company: "As a matter of common justice, the dual capacity as foreman and independent contractor is so much of an interlocking, and so much apart from that justice which is contemplated by the beneficent terms of the compensation act, and, in fact, is so much of a wheel within a wheel, making difficult the expedient determination as to who is responsible for the injured workman, that it should not be allowed to survive. The Supreme Court of our State has held that, for the ordinary and logical administration of the compensation laws, an employer can not at the same time be recognized as an employee, and the same principle should be well established in regard to the dual capacity of an independent contractor who is at the time performing the duties of a general foreman."
The evidence was sufficient to authorize the finding that the claimant's husband was an employee of the construction company, through its general foreman or supervisor, Melder, and that Melder, in employing him, was not acting as an independent contractor. The evidence authorized the award, and the judge erred in sustaining the appeal and setting it aside. *Page 802