Myers v. Villard Creamery Co.

HOLT, Justice. Certiorari to review an a Avar d of compensation for an accidental injury suffered by respondent while at work for the relator creamery company. Respondent is a blacksmith in the small village of Villard, this state, and has a smithy across the street from the plant of the relator creamery company. One Peterson, a buttermaker and licensed engineer, is manager of the creamery. Respondent is called on by Peterson to do such repairing for the creamery as comes within his line of work; and occasionally, when the creamery needs *245 additional help in the ordinary operation of its business, respondent is called and does whatever he is directed to do. For work so done, whether as a blacksmith or as a helper in running the creamery, he is paid at the rate of 75 cents per hour. Respondent is not paid each time just after doing the work, but sends in his bill, perhaps not oftener than once a year. Mr. Peterson had designed a heating device to be used in the creamery. It consisted of a large automobile radiator placed on a base, made by respondent in the smithy. Behind the radiator was an electrically operated fan to distribute the heat. Peterson, with respondent’s help, had installed this heating plant in the creamerjL Several days after this was done Peterson thought the apparatus would function better if the end play in the fan could be removed and some vibration therein stopped. He called respondent over to the creamery to reduce the end play and remedy the vibration by putting a washer on the armature shaft of the motor and a rivet in the fan. Peterson was present, and he and respondent tried out and experimented with the means which they thought would correct the faults in this heating outfit. In so doing the fan accidentally struck respondent, causing the injury for which compensation was awarded. There could be no doubt of the right to compensation had one of the regular employes of the creamery company or its manager received an injury in precisely the work respondent was doing when injured. The same would obviously hold true if respondent, when called in, had been set to handle butter-tubs or doing something pertaining to the ordinary operation of the creamery. To have that heating device function properly was perhaps as needful to the operation of business of the creamery as that of a churn therein. So, Avhthe the employment was casual, it was nevertheless in the usual course of the business of the relator creamery, and hence respondent was covered by the compensation act. If respondent had had no shop in Villard, but had been called from his home or the street to do this work under the immediate direction of Peterson, a licensed engineer, it could not well have been urged that he was an independent jobber or contractor and not the employe of the *246 creamery. The fact that respondent had a shop should not as a matter of law exclude him from the benefits of the compensation act. Under the evidence showing a casual employment in the usual course of relator creamery company’s business, at the understood wage of 75 cents per hour, working under the immediate direction of its manager, no reasonable fault can be urged against the finding of the commission that respondent was an employe and not an independent contractor at the time he sustained his injury due to an accident arising out of and in the course of his employment. Relator relies on Schoewe v. Winona P. & G. Co. 155 Minn, 4, 191 N. W. 1009. There the finding of the industrial commission was that the workman was an independent contractor or jobber and not an employe; here the finding is to the contrary. That case cites the authorities as to what extent the finding is conclusive in this court. It appeared in the cited case that Schoewe did jobbing work outside his blacksmith shop; that there was no express understanding or agreement to work by the hour; that apparently he did not work under the direction and supervision of the company; and that there was no evidence that he was ever called to help in the ordinary business of the company. He had done other “jobbing work” for the company, presenting his bill whenever the particular “job” was completed. We deemed there was some basis in the evidence for finding Schoewe an independent contractor and not an employe. It must be admitted that there is force in the proposition of dissenting commissioner Williams that a shopkeeper or jobber, called to make some repairs of instrumentalities necessary to the operation of a business, does not while doing such work become the employe of the one conducting the business and is not covered by the workmen’s compensation act. Had respondent been accidentally injured while working on the base at his shop or had the fan and motor been sent to the shop for the adjustments and respondent injured while making them at the shop, it could not have been well contended that the commission would have been compelled to find that he was an employe of the creamery. The facts and circumstances of each case must be weighed by the in *247 dustrial commission. Its conclusion as to whether the injured workman was an employe or independent jobber or contractor of the owner of the business where he worked when the accident befell him must stand if there is evidence fairly sustaining the same. In our opinion the evidence sustains the finding under review. The award of the commission is sustained with $50 attorney’s fees in this court to be taxed as costs in favor of respondent.