Fuller v. Northern States Power Co.

HOLT, Justice. Certiorari to review the decision of the industrial commission awarding respondent compensation on account of her husband’s accidental death arising out of and in the course of his employment. George F. Fuller, respondent’s husband, lived at Glenwood, Minnesota. His regular work was that of car inspector for a railroad company. During his spare time he occasionally did some work for relator painting and cleaning bothers and smokestacks. Relator owns and operates plants producing and distributing electric power; also plants producing for distribution steam heat in certain cities and villages, one being located at Glenwood. For nearly every year since 1921 decedent had been employed to clean and oil the inside of the smokestack of relator’s plant there and to paint it *135 outside; also to paint the bothers. He could do this work at his convenience when the steam-producing plant was not operated, that is, between June 1 and September 15. Relator’s superintendent, Mr. Hakes, had charge of the plant at Glen wood and attended to the painting and cleaning of the smokestack and bothers. In 1929 Mr. Fuller did this work, the working order specifying that $30 was for painting the smokestack, $5 for putting rope in pulley, and $15 for remOAdng soot and oiling the inside of the stack- It appears that when the decedent was employed to do this painting in the summer of 1930 a work slip was made out and sent to the St. Cloud office of relator for authority, and a copy given decedent. Mr. Fuller being dead, Mr. Hakes, who engaged Mr. Fuller, could not testify as to the conversation. So Ave have only this work slip upon Avhick $50 was indicated. Relator supplied the paint, the oil, brushes, ladders and all instrumentalities needed in the work. On June 25, 1930, Mr. Fuller attempted to pull a cable attached to a rope through a pulley at the top of the stack. The rope and cable parted, and the cable he held, falling against a Avire carrying a deadly current of electricity, killed Mr. Fuller almost instantly. The referee found that on June 25, 1930, George F. Fuller was an employe of relator and was receiving as wages the sum of $50 per week, and that while so employed he suffered an accidental injury arising out of and in the course of the employment, resulting in death. It appeared that ordinarily it took Mr. Fuller about a week to do the work. Compensation was awarded. The industrial commission adopted the findings of the referee and affirmed the award. The particular finding challenged by the assignments of error is the one that decedent was an employe of relator when his accidental death occurred. The claim is that the evidence is conclusive that he was an independent contractor. Painting the smokestack was a casual piece of work, but it was a necessary part of relator’s»business. Scraping and oiling it on the inside and painting it yearly on the outside was as necessary to a proper conduct of the business relator was engaged in as the cleaning of the windows in the case of Carter v. W. J. Dyer & Bro. 186 Minn. 413, 243 *136 N. W. 436. Therefore. Mr. Fuller was uot excluded from the workmen’s compensation act as one “whose employment at the time of the injury is casual, and not in the usual course of the trade, business, profession or occupation of” relator. 1 Mason Minn. St. 1927, § 4268. And see also in that connection Bosel v. Henderson Holding Co. 167 Minn. 72, 208 N. W. 421, and our previous decisions on that subject therein cited. The real question is whether the evidence required a finding that Mr. Fuller was not an employe but an independent contractor. In passing on the question, the purpose of the act, to afford a workman and his dependents protection against the accidental injuries which may befall him in his employment, must be kept in mind and the intention of the legislature to place the burden of so doing upon the industry or business in which he is employed. The act itself, 1 Mason Minn. St. 1927, § 4290, foresaw that'there might be means adopted to deprive the workman of the benefits intended. There is and can be no claim that relator in this employment sought to evade liability under the act. But there is language in the section, referred to which indicates that the conclusion ought not to be too readily arrived at that the ordinary workman who does manual lalsor by the “piece” rather than by the day or hour is an independent contractor. That part of § 4290 reads: “But this section shall not be construed to cover or mean an owner who lets a contract to a contractor in good faith nor a contractor, who, in good faith, lets to a subcontractor a portion of his contract. Provided, however, that no person shall be deemed a contractor or subcontractor, so as to make him liable to pay compensation within the meaning of this section, who performs his work upon the employer’s premises and with the employer’s tools or appliances and under the employer’s directions; nor one who does what is commonly knOAvn as ‘piece work’ or in any way where the system of employment used merely provides a method of Axing the workman’s Avages.” Mr. Fuller could hardly be termed a contractor or subcontractor within the purview of this section. The inference is that he per *137 sonally was to do the work. The work was to be done on the premises of relator with its materials, tools, and appliances. Fuller was to do the manual lalsor of scraping off the soot and rust and applying the paint and oil furnished by relator. Fuller was not to furnish any material, tools, or appliance whatever in the job. The clause “and under the employer’s directions” the commission could infer was of no significance here, since from previous performances of this work both Fuller and relator’s superintendent understood that no directions were needed. It is also to be assumed from surrounding circumstances that there was no binding contract so that Fuller could have recovered damages if relator had concluded not to have the work done after the employment was effected. Again, the commission could conclude that this was “piece Av.ork,” or a method of fixing his Avages. Both employe and employer from past experience knew about what time it would take to do the work. They knew that it could only be done at odd times when Fuller was away from his regular employment. Whthe Fuller could spread paint on a smokestack, he was not a paint contractor having a shop, using his own brushes, paints, tools, and appliances. This could also be taken into consideration in the determination of the fact whether he was an employe or an independent contractor. There is no way in which this case can be distinguished from that of Wass v. Bracker Const. Co. 185 Minn. 70, 210 N. W. 464. There, notwithstanding the conclusive effect accorded the findings of fact of the commission, its finding that Wass was an independent contractor was held not supported by the evidence. It appears that this record presents more persuasive evidence to sustain the finding that Fuller was an employe of relator and not its independent contractor at the time he met death than did the record in the Wass case that Wass held that status toward the party constructing the building upon which he worked when killed. The commission in the instant case no doubt endeavored to follow and apply the decision in the Wass case, 185 Minn. 70, 240 N. W. 464. The fact that Fuller’s son helped his failer, by snubbing the rope which held the boatswain’s chair, when Fuller was working upon parts of the stack *138 not accessible-by means of the ladders, does not necessarily prove that the father was an independent contractor. Lynch v. Hutchinson Produce Co. 169 Minn. 329, 211 N. W. 313. Relator cites Petzold v. McGregor, 92 Ind. App. 528, 176 N. E. 640; Litts v. Risley Lbr. Co. 224 N. Y. 321, 120 N. E. 730, 19 A. L. R. 1147; Village of Weyauwega v. Industrial Comm. 180 Wis. 168, 192 N. W. 452. That these decisions are in point and support relator’s contention that Fuller was an independent contractor must be conceded. But the facts in none of them are as like the case at bar as those present in the Wass case, 185 Minn. 70, 240 N. W. 464, where, after full consideration, this court gave more consideration to the fact that the employment was that of an ordinary manual lalsorer expected to do the work himself. If that decision is to stand, we should not follow those of other jurisdictions not in harmony therewith. It should also be remarked that the statutes of the three states whose courts rendered the decisions referred to have no provisions like those contained in § 4290 of our code above quoted. In the Petzold case, 92 Ind. App. 528, 176 N. E. 640, it appears that the painter, who made claim for compensation under the compensation act for an accidental injury while painting one of the dwellings Petzold, a building contractor, was constructing, was to furnish the tools and brushes required and could employ assistants to be paid by him out of the price he was to receive. In the case at bar Fuller personally was to do the work, and relator was to furnish not only the paint but all the brushes and tools or appliances needed. The situation in the Litts case, 224 N. Y. 321, 120 N. E. 730, 19 A. L. R. 1147, was the same as in that of Petzold. In the Village of Weyauwega case, 180 Wis. 168, 192 N. W. 452, the painting of a bridge was let to Kramer for $75. Bids had been called for and Kramer’s was accepted, though not the lowest. Kramer could do the work himself or hire others to do it. The village was to furnish the paint and Kramer the brushes and tools. It was held that Kramer was an independent contractor notwithstanding a finding to the contrary. Mr. Justice Grownhart’s dissent is forceful. In view of our decision in Wass v. Bracker Const. Co. 185 Minn. 70, 240 N. W. *139 464, and Carter v. W. J. Dyer & Bro. 186 Minn. 413, 243 N. W. 436, we must permit the finding and award of the industrial commission to stand. The writ is discharged and decision awarding compensation is affirmed, with $100 attorneys’ fees to be taxed as costs in favor of respondent. OLSEN, Justice, took no part.