Burkhardt v. State

[File 7289] No. Appellant, THE OF STATE BURKHARDT,

CAROLINE doing Com- as Workmen’s business DAKOTA, NORTH Re- Schmidt, and John pensation Bureau, and Val spondents. 394)

(53 NW2d Opinion May 1, 1952 filed Floyd Hyland Sperry B. appellant. Foster, & Attorney Christianson, Sand, T. Paul General,

E. M. Assistant Kellogg., Attorney Mugli Kirhy General; Mackoff, Struts, & respondents. Fleck, & Jansonius Rudolph injuries Burkhardt J. died from received Grimson, helping

in a fall the roof of a which he con- from barn was the farm struct on of John Schmidt near North Richardton, plaintiff Dakota. The is his widow. It is claimed her on behalf employee Messer, the the time an deceased was at an of Yal Messer, however, the barn. contractor, complied Compensa- with the North Dakota had not Workmen’s bringing against damages Act. Instead him ton plaintiff of suit compensation to file a claim an award of elected Compensation Law, 1943, Title 65 under Workmen’s NDRC Hearings application by Chap. 65-09. on said were held Compensation Bureau under the Administrative Workmen’s Agencies Chapter Practice 28-32 1943. Act, Uniform NDRC appealed by was to and affirmed Its dismissal claim appeal judgment District Court. On from District Supreme that the to the it discovered notice Court Court was hearing Bureau had not been served on interested before the required by parties was, therefore, law. The remanded as case judgment with directions to vacate the en- to the District Court and to remand case to North Dakota-Workmen’s tered hearing on the after due Bureau for claim pai’ties provided by all interested was law. notice served ND 670. State, NW2d Burkhardt See The District Court out carried court mandate this Compensa- remanded tlie case to the North Dakota Workmen’s duly hearing A tion Burean. had before the Bureau on the plaintiff parties. claim of the after due notice to all interested Rudolph The Bureau thereafter came to the conclusion that injuries resulting Burkhardt at the time of the in his death was employee engaged an of John Schmidt; John Schmidt was agricultural pursuit employment in an and that Burkhardt’s at injury, resulting the time death, his The casual. duly appealed Bureau dismissed the claim. claimant The to the asking alleging District Court ing for trial anew, as error the find- Rudolph of the Bureau that Burkhardt was an employment John and that injury at time of his agricultural pursuit. casual or proceedings All Compensa- had before the Workmen’s appeal. tion Bureau were certified to the District Court on the Sec 28-3215 1943. The review the NDRC District is Court upon that record and under the statute, Sec 28-3219 NDRC agen- District Court is “directed affirm the decision of the cy unless shall find that such decision determination findings in accordance with law or that the ... of fact made agency supported by are not the evidence. . .”. District Court affirmed the Bureau’s An dismissal of claim. appeal thereupon plaintiff to this court was taken under demanding alleging 65-1001 Sec NDRC a trial novo de failing error in to find that the defendant Messer anwas inde- pendent setting eight specifications support contractor, forth in Rudolph failing thereof and in find Burkhardt was em- ployed by failing grant Messer of instead Schmidt and in plaintiff. claim of the part plaintiff

It is claimed of the that Messer was an independent working contractor and that Burkhardt was building him in independent of barn; Schmidt’s that as such subject provisions contractor Messer was to of the North Chap Dakota Workmen’s Act, 65-09 NDRC 1943, complied even if provisions he had not with the thereof; that performance Burkhardt died in the of his duties in the of course employment and that Mrs. Burkhardt is entitled to an award compensation. appellees On behalf is claimed that 822 employed as foreman

Messer employ- Burkhardt were Messer and barn that both of the agricultural employment serv- or in casual of Schmidt ees ice. necessary, determine whether to first therefore,

It becomes independ- Bureau, that was not an of the the conclusions employees he and Burkhardt were ent contractor but both supported by are in the evidence and accordance are Schmidt, law. “inde- definition term The statute does make applied pendent tests. various The courts have contractor.” depending emphasized have cited Different factors been particular All of each case. circumstances somewhat on may particular case be con- the facts and circumstances is making a workman of whether sidered in determination independent Bartholo- or an Knuffke v. contractor. Chicago 889; mew, 106 Neb 184 v. Lumber Com- 763, Lowe NW pany 1 Omaha, 735, 841; 135 283 NW Schneider’s Work- Neb Compensation Law, men’s 285. person important determining

“The whether a most test in employed independent do is an contractor certain work which is reserved a mere servant is the over the work control independent employer. contractor Whether one is an depends independent fact, extent to which is, performing Broadly the work. if contractor is under stated, employer, if not servant; control of the he is under such Independ- control, he Am Jur, is an contractor.” 27 p 6, ent Contractors, Sec 486. applied. principle approved generally

This has been North Mutual Life Insurance of New v. State of Co. York Dakota, 58 Am 78, 773, 449, 71 ND 298 1115, 138 ALR 71 CJ NW Angell Eagle Refining 670; Minn Jur v. White 169 Oil & Co. Appanoose County, 168 183, 498, 210 Pace 1004; NW v. 184 Iowa Schlichting Mc 916; 585; v. Radke, 212, NW SD NW Carthy City Nonning al. et 790; v. 68 SD 297 NW Murdo, v. Carter et 185Wis 200 NW 652. al. Bernardy 374:

This court held in 75 ND Beals, NW2d -right important applied tests to be “One of the most

823 merely employer result but the manner in control performance. and the methods in its work is done used which the Comp. Starkenberg Bureau, Dakota 73 v. North Workmen’s Comp. 395; Bureau, 67 ND Janneck v. Workmen’s 234, 13 NW2d Hughes v. ex rel. Co. 188; ND 272 NW State Woods Oil 303, Haynes Lilly Co-op. 50 581, 586; ND 226 v. Coal Min. Co. 58 NW County, McLean 52 ND 556; 852, ND 196 Kronick 465, NW v. 204 NW 839.” important right

Another factor and as an incident of the discharge Bernardy control hire is and workmen. supra, v. A Beals, cases cited. further indication con to be determining relationship sidered in the mode, is method or payment. Drainage basis Levee & Meredosia District v. In dustrial 68, Ill. 285 Ill 120 NE Commission 516. That, how given weight ever, been has less than some other factors. Bernardy supra; Ryan City v. 471; 71 Beals, CJ v. Twin Whole Grocery Phillippi sale Co. 210 Minn 297 21, 705; NW Finn v. 211 130, Minn Brothers, NW 441. The fact that the work required special performance to be done is such as for its skill Indemnity a circumstance to be considered. Shannon v. Western (Tex App) furnishing Co. Com 257 SW 522. The of tools, ma supplies although terials should be considered the courts ways have both held as to the conclusiveness thereof. 71 467, CJ 469. may

Other tests which be considered under the evidence of parties this are case attitude intention of the deter mined from all the 670, circumstances of the case. 58 Am Jur Compensation, p Workmen’s 138 670, Sec whether the work is part regular Nallinger employer, business City Webster Oil Co. Iowa, NW whether the contemplates job completion contract labor on the or the job portion or some thereof. Industrial Ham Commission v. mond, 77 Colo 236P 1006.

The evidence from his discloses John had retired destroyed farm and rented fire. it to his son. His barn was He then contacted Val Messer who testified his name carpenter E. Valentine Messer. Messer least at years engaged erecting three had been build- barns other 824 neighborhood.

ings in His continuance the work shows in that necessary erecting buildings. for That was he had the skill occupation. regular asked him to build Schmidt a certain kind says: gave He “I make much him the size.' didn’t of barn and just him the barn for me of a deal. I asked to build and They spring in with . two other men. built came out . . got I he came out and the foundation and later on lumber help.” they in with the Messer testified: “He want- and started you help’ put up get said, him and he ed a barn for ‘Can me to along in that went with me there were some town said, I ‘Yes, they paid by put up “Q.— hour. . . barns straight, get a fact that Messer, Mr. is Schmidt Now to this you built. with have a barn Is ? Ans.— a deal made particularize did not how the barn should Yes.” Mr. Schmidt plans regard in that built. Messer made all the and directed be get. Schmidt furnished all materials what lumber Schmidt lodging for the men. Messer and the board and furnished brought man, Heinle, another Burkhardt’ and tools. Messer along their and with some barn. With aid him to build this exchanged help work farmers with whom Schmidt from carried the con- All the work was on under the barn was built. Even and his carried of Messer. Schmidt son trol direction building did on the in the work orders out Messer’s lumber and told men what to do and cut the barn. Messer charge. says: complete He “I was it. He was how to do responsible job. He . .” carried the work to for the . shingling part job except completion for the a of one shingles. lack of which could not be done for roof side of the shingles. says: delay getting “That There why didn’t finish.” we agreement between Schmidt an This evidence discloses complete building the barn with Messer Messer charge Starkenberg North Dakota Work- of that work. 395, this ND Bureau, NW2d men’s building to construct contracts' held that: “One who court subject being plan, stipulated without with a in accord another, respect superintendence, .of or control in orders, to the latter’s the.work; has control who absolute work; the details may work work, fit do the may as he sees work hours paid employ definite, to be assist, and is others himself fully completed, is stipulated has been when the sum contractor.” but is not an payment the hour in the instant case That the and that who furnished some laborers worked under not make does difference. r direction Messer’s analogous McCarthy An forth in case of situation set City plumber 12, v. NW There di- Murdo, 68 SD 297 790. a progress rected the which work he had do undertaken to city completed according plans for the work to that he had progress city pres- made. While work was a officialwas attempt plumber, ent but not did exercise control over the by by city. who was assisted two WPA furnished workers The plumber equipment paid furnished all and materials and helper wages city. city for which he billed the The could have plumber’s employment plumber perform terminated if could not agreed perform. plumber he had work submitted a bill per plumber It on a diem basis. was held that the was an “in- dependent “employee.” contractor” and not an County, In Kronick v. McLean 52 852, ND 204 839, one NW “ County perform Aune contracted with McLean the duties repairnig’ paid county jail.” the court house and He was seventy-five paid cents an hour. He Kronick who was hired sixty-five complete charge cents an hour. Aune had of the work supervision County County under the Commissioners and relationship employer Auditor. ployee It that held and em County. not did exist between Kronick and In Mon Fargo, garbage tain v. 38 ND 432,166 416, 600, NW LRA1916C a independent although collector was acting- held an contractor supervision City under the Health It Commissioner. pointed entirely there out that a servant is one under control of by (Sec master as defined Sec 6134 CL 1913 34-0401 NDRC 1943) coming while inference one not under that definition independent is an contractor. In Sears, Newman v. Roebuck & carpenter Co. 77 ND installing folding- 466, 43 NW2d a 411, independent bed an was held contractor. In Janneck v. Work men’s painter, Bureau, ND NW paint job held a certain hired for Weddell, contractor. that employment the evidence Burkhardt shows

theOn kept only Heinle whom time of Barkhardt and Messer .not pay brought much to that he determined how him but with he strangers He never to Schmidt. men were of these them. Both wages. employment He claims their to them as to talked entirely subject They working worked Messer. for had for Messer testified worked Heinle Messer’s orders. paid by usually .many jobs That Messer direct. been job. working Dahl Messer on this for he considered himself it 399, 401, is held 194 Minn 259 NW Wunderlich, knowledge change without the cannot of masters there be a town, called them the servant. Messer and consent of only job but directed, work took them the day. worked each hours Sperry, testified: Mr.

On examination you Now Mr. isn’t the truth that “Q. Messer, made this you deal got Mr. Schmidt to build this barn him they paid? these told them men and about what would be “A. Yes. making You took these men

“Q. over there after this deal help you you you them to them what told to do while were the barn? right.

“A. That is you kept

“Q. And the time?

“A. Yes.” paid. Messer also determined amount these men should he He said: you you you

“Q. Before went there told Mr. Schmidt what going charge your were for that time of the men? “A. Yes. they going get?

“Q. You told these men what were doing along.” “A. that We were persuaded Schmidt to draw checks direct Burkhardt objected and Heinle the amount be directed. request. finally acquiesced There is some' but Messer’s testimony paid weekly were bnt Schmidt testified that paid job when the was done. That was after Bnrkhardt’s payment In either case the death. was controlled Messer. wages payment testimony On this matter of shows that Commissioner Fenelon asked Messer: you working place you

“Q. were While at the Schmidt did put say sixty per in the only men’s at time, cents hour, and then pay fifty you the men cents an arrange hour? Did have ment like that?

“A. No. you any profit

“Q. other words, never made on the men? why “A. That pay I the reason had the owner I them. didn’t making money want the men think I off them. get There awas fellow here in town that did ten cents hour got each Nobody and he say fellow into trouble. can I got than the more ones that worked for me.” you

“Q. Did furnish tools for these men?

“A. Yes. you charge

“Q. anything Did them for the use of tools'? charge anything got “A. I didn’t the men I but fifteen cents they got. an hour more than

“Q. Was this for the use of the tools?

“A. Yes.” by Sperry,

On cross examination Messer testified: your “Q. Then you getting- fifteen cents an hour that were got you above what the charged others was in what for the tools?

“A. I owned tools. you job It you

“Q. was because were boss responsible supervision for the of the work?

A. “Yes.

“Q. You did not want the Workmen’s Bureau you to know were a contractor? I

“A. never was a contractor. paid you they if were afraid that these men direct You. “Q. you a contractor? considér would

“A. Yes.” why payment this was made in indication Another testimony Schmidt, of Frank who tésti- in the manner is found during there some -the work conversation with got fied happen anybody if hurt. “I said, would about what Messer says: they?’ that, for aren’t He insured these men are ‘Well They anything they did not want taken have no insurance. ‘No, ” taking pay, I insurance.’ Heinle therefore, am not of their out you “Q. He testified: Did think he that. contradicts somewhat thought You he had Q. Yes. insurance? insurance? A. A. Yes.” ' discharge who had the the matter of right On right. job denies the evidence shows He testified: business didn’t the work whose If Mr. Burkhardt do

“Q. him ? it to fire say. nothing I had “A. job? would be Messer’s That

“Q. working him.” He

“A. says: it. He tried to avoid men? fire these You could

“Q.

“A. No. bossing they and if didn’t do the work them were

“Q. You you fire them? could n working They They for me. so. weren’t I think “A. don’t working for someone else.” Fenelon asked Messer:

Commissioner supervision you work? “Q. Did have the up job they responsible left it to me.” for the “A. I was pursued Sperry this further: Mr. responsible way you men did the these “Q. Did feel n (cid:127) you

job, them there? since took over responsible for them? “A. I felt way the work? for the did

“Q. Yes, No “A. answer. question you you before answer that. another Let me ask

“Q. responsible Say you job building were barn, took the you say Mr. Burkhardt the men did and it and for work right, breaking up doing and not the lumber the work was wasn’t you sidings right putting fire him? —would way. he didn’t do it that “A. Not fire him but tell him, (cid:127) wrong, you if he continued to do it would fire “Q. But still him?

“A. He wasn’t that man. kind of a If'he

“Q. was? I “A. I would talk Mr. before fired him. to you Why you Suppose Mr. did “Q. talk to would Schmidt? hopeless talk him man and he told to Schmidt told this you keep you responsible way him and for the the barn turned out?

"A. Not in that case. right would

“Q. You have the to fire him? guess Yes,

“A. I so.” (cid:127) Taking together circum- answers, those with the facts stances case, that Messer did have conclusion is right discharge employee. an . appears

From a the evidence it that Messer consideration of all engaged occupation building He took a trade or barns. job building He did a certain barn for Schmidt. kind planning. complete all He over the exercised control mam respon- ner and the method of barn. Messer was said job brought respects. sible for the in all Messer Burkhardt job. They super- another man on the under worked Messer’s paid vision. Burkhardt was hired effect Messer. discharge had the a workman. findings respect any The Bureau made no whatsoever with just they any although stated, facts are without substan- dispute only finding tial the record. Its is the ultimate in. injury resulting conclusion that at “Burkhardt, the time of his death, in his of John Schmidt.” There are in findings upon the record no of fact which could conclusion .rest, nor is there in the record intimation as basis n Bureau founded conclusion. view this Our which clearly permit established and will

that the facts are employee that Burkhardt an other than was no conclusion independent an contractor. Messer,

Chapter provides employ 65-0102 1943 NDRC that casual agricultural by ment and are service not covered the Workmen’s question building The Act. arises whether the agricultural employment a barn is service casual under of. the circumstances this case. We have held Burkhardt was an of Messer. Messer’s business that of erecting buildings. building He was a barn for Schmidt. That employment regular not a casual in but of his course employment business. Even if that a farm that does on. engaged solely not make those in that work farm The laborers. employment whole character shows that Burkhardt was employed perform ordinary not farm work. He was a car penter employed by a builder whose it business was to erect buildings. barns other In Lowe v. North Dakota Workmen’s Compensation Bureau, 66 ND 246, 973, 264 ALR 837, NW 107 opinion by Judge this carpenter court an Burr said that a granary engaged agriculture. ap a was not That plies building, employment also to the of a barn. Burkhardt’s agricultural. was neither casual nor v. Ernst, Oliver 148 Nebr Eyota, 465, 27 NW2d 622; Peterson v. Farmers State Bank of 180 Minn 40, 230 NW 124.

A consideration of all the facts and' circumstances shown testimony parties, lead's to the conclusion that the support findings evidence does not and conclusions of the contrary supports Bureau. On the plaintiff the contention of the Rudolph employ Burkhardt was in the of Yal engaged Messer, contractor, and not in either agricultural occupation. casual or an therefore, His widow is, compensation injury entitled to an award of because the fatal employment. her in the husband course of findings by No were made the Bureau or the District Court average weekly wage Rudolph as to the is, Burkhardt. There however, in the record sufficient evidence which such finding finding can be made. That be made the Dis- must

831 In accordance with 65-1002 trict Court. Sec. NDRC 1943, compensation fix the District Court shall claimant’s within the prescribed by Rudolph From limits law. the date of Burkhardt’s July death, 9, June 1945 the 1, statute fixed the rate compensation per average for widow of such at 35 cent of the weekly wage exceeding of the deceased not nor $30.00 less than until she died or $10.00 remarried. See Sec. 65-0517NDRC July July 1943. From that rate is fixed at per weekly wage exceeding cent of that not nor less $35.00 Chapter than See See. 65-0517 as amended $25.00. Sec. 6, July per 337 S.L. 1945. Then from 1, 1949, the rate is 45 cent wage exceeding of that nor less than $35.00 $25.00. See. Supp. 65-0517 1949 judgment of the District Court is reversed and the case is

remanded District Court directions to find the aver- age weekly wage compensation of fix the deceased, amount of n judgment plaintiff and to render for in accordance herewith.

Morris, C.J., and JJ., concur. Burke Sathre, (Dissenting). appeal J. This is an from a Christianson, judgment County sustaining District of Court Stark Compensation decision of denying the Workmen’s Bureau compensation Rudolph claim for the death of Burkhardt, Rudolph husband of the claimant Caroline Burkhardt. Bu'rk- injuries hardt died on June 9, 1944, from sustained him On day in a fall shingling from the roof of a barn which he was on of the.farm John Schmidt near Richardton in this state. It is stated in the claim that at the time he sustained such fatal injury Rudolph Burkhardt an was of Val Messer.

At the of the fall time Burkhardt and Schmidt, John the owner being engaged of the farm where the barn was constructed, were shingling present the roof. There were also and at work on neighbor the construction one Joe Thomas, with whom Schmidt exchanged labor, and Val Messer. The record does not disclose particular doing what work Thomas was at the time the accident engaged painting occurred, but Val Messer was the windows. “I described the accident as follows: heard him and from he fell the scaffold and the scaffold down.” fell “He dropped over on the scaffold and then fell down.” Q. “You didn’t working! you were him when he slid from where A “No.” see just edge?” you Q. on the A. “Had Q. “He was “Yes.” moved plank they planks?” a x tack on.” Q. A. “No not a 1 4 “You up?” just Q. A. “Yes.” “And he fell?” A. moved that ways I saw him.” and he half down when “Yes Adolph Rudolph son the deceased Burkhardt, Burkhardt, appointed administrator estate and letters of adminis- Adolph Burkhardt, to him on 10,1944. tration were issued June signed application administrator, to the Workmen’s Com- pensation compensation Rudolph Bureau for for the death of Rudolph Burkhardt, Burkhardt, Caroline the widow signed application. application Burkhardt, also Compensation filed with the Bureau on June 1945. Workmen’s July Compensation Bureau ren- 13, 1945, On Workmen’s compensa- writing dismissing the claim for dered its decision application reference made to the tion. In such decision proof compensation, the certificate death, undertaker’s dependency, interrogatories death cost the affidavit bill, signed Schmidt; and it that had submitted to and John been papers having all the records and all the examined is stated having testimony being correspondence taken filed and fully found that the claimants the Bureau determined and advised prove in the had failed to were entitled share fund the Bureau con- Bureau and of Workmen’s for the reason that the claim should be dismissed cluded prove they share were entitled to had failed to claimants petition attorney Thereafter claimants’ filed a fund. in such hearing petition rehearing. granted and a on The for 1945. 26, had to be had and was on October was ordered claim appeared Compensation hearing Bureau the Workmen’s At Attorney attorney, the claim- by General, an Assistant its Floyd Sperry, by attorney, claim- appeared B. their ants person appeared The testified. Adolph Burkhardt ant hearing then hearing 1946. At the in March until was continued testimony then taken The testified. witnesses number had transcript. typewritten pages seventy-eight some covers Compensation Bnrean ren- the Workmen’s March On they reaffirmed wherein decision decision a unanimous dered dismissing the claim July 13, 1945, they on rendered had which namely, had failed claimant grounds, that the the same Compensa-' participate any right in the Workmen’s establish appealed decision from the The claimants tion Fund. of Stark Compensation the District Court Bureau to

Workmen’s ‘ County. upon by court the district appeal tried heard and Compensation by the Workmen’s made been record that piescribed appeal- as the court on such certified Bureau by hearing Upon the 28-3219. 28-3217, NDB.C statute. attorney, Floyd by appeared their claimants district court in the appeared Compensation Sperry, Bureau B. and Workmen’s question attorney. raised as to the status of No their Compensation appeal. and the The claimants Workmen’s ap appeal only parties alone to the were the Bureau upon hearing peared It was the con in the district court. was an of the that Val Messer tention claimants and that and that con Burkhardt was contractor sequently an allowance claimants were entitled to of the claim. opinion The trial court his decision in a memorandum announced analyzed wherein discussed and the evidence with much care at and arrived the conclusion that both “Messer and Burkhardt employees consequently of Schmidt” and that claimants proof had failed to sustain their burden of and were not entitled recovery against Compensation to a the Workmen’s Bureáu or Compensation Fund in Workmen’s sum whatsoever. Judgment accordingly appealed was entered and the claimants appeal to this court. In consideration of the this court was found no had been made service Messer of notice hearing Compensation to be had before the Workmen’s though he had Bureau been called and testified as a witness. express provisions Under the of the statute no award can be against employer, comply made who -with the an has failed provisions injuries sus Act, Workmen’s employee, hearing the claim tained unless notice of

834' upon alleged employer against

compensation has been served provided by sought, law for award in the manner whom the 1943, in a action. 65-0902. of a summons civil NDRC the service court with di The therefore remanded to district case was judgment remand the case to vacate the and to rections to hearing upon Compensation notice to Bureau for "Workmen’s by provided parties, State, Burkhardt v. the interested law. by Judgment entered 670. was district 232, NW2d ND May pursuant 10, court mandate of this court on 1950. such Com- remanded to Workmen’s record was Thereafter the pensation hearing the claim was served on and Bureau notice pursuant hearing came on The Messer Schmidt. represented The claimants on 1950. 6, notice June Compensation was attorney Bureau their and the.Workmen’s Attorney represented attorney, General. Assistant its an. present. All the members were also Messer and Schmidt hearing. present Compensation at the Bureau.were Workmen’s testimony stipulated record “be ac- in the It that all the cepted testimony with the force the case same as the though taken this time.” effect as it had been at questions by response commissioners, one Schmidt, in offer at that time. stated no additional evidence to required hearing gave held be The Bureau notice of a postponed hearing to and was 1950. The 13, October held on October 1950. All three members Workmen’s Compensation present participated in the Bureau were Compensation hearing. The claimants Workmen’s attorneys. appeared by respective Bureau their Val Messer and appeared by attorneys. attorney Schmidt also their John for the testimony more claimants stated claimants would like to take Frank Schmidt,

and offered as son of Jolm witness, testimony Such Schmidt. witness was and no further examined the matter offered was submitted Bureau. and' May Compensation Thereafter on Workmen’s Bureau rendered its decision. In its decision the Workmen’s findings “Rudolph Bureau made Burk- fact injury resulting hardt at the time of the his death was employee en- Schmidt,” of John. that Schmidt was and “John employ- agricultural pursuit gaged in an and Mr. Bnrkhardt’s -injury resulting ment at the time of the in casual.” his death was he The Bureau stated as law that the claim should conclusions “Rudolph for the at the time dismissed reason that Burkhardt injury employee resulting in his death was an John agricultural engaged that Schmidt,” John in an Schmidt was pursuit employment and that Mr. Burkhardt’s at the time injury resulting casual; in his death that claimant has was and prove participate failed to that she is in entitled the Work- Compensation appealed men’s Fund. The to the dis- claimants Compensation trict from the decision of the Workmen’s court hearing the matter on for before Bureau. In due course came the district court been made before record that had Bureau, Compensation Workmen’s certified to the court on and appeal prescribed by 1943, 28-3217, 28-3219. NDRC Upon hearing district court the claimants trial and Compensation appeared by and the respective Bureau Workmen’s their duly counsel and the cause submitted was court. opinion The court its announced decision a memorandum analyzed questions presented wherein he the evidence and at (cid:127) length. opinion In some such memorandum the court held the claimants had failed to establish that Messer an inde- was pendent employee. contractor and Burkhardt its findings engaged fact the court found “that when Mr. Schmidt completed Mr. contracted a service not for and employees and both Messer and Burkhardt were of Schmidt,” that the claimants have failed sustain their proof recovery burden of against are “not and entitled to a Compensation Compensation Workmen’s Fund or Workmen’s Bureau in judg- sum whatsoever” court ordered that dismissing proceedings. Judgment ment be entered accordingly present appeal entered judgment from entered. so Compensation charged

The Workmen’s Bureau is duty authority to hear and vested with the determine all injured compensation from claims the Work- power men’s Fund, in the exercise of such power authority ques- has full to hear all and determine jurisdiction. within tions its NDRC 65-0503.

“If the final action of the bureau denies of the claim- participate ground injury ant to at all in the fund on the that ground or self-inflicted; on the that the accident did not arise employment, upon any ground going the course of other right, may appeal to the of the claimant’s the claimant basis county injury the district court of the wherein the was inflicted.” 1943, NDRC 65-1001. scope procedure appeal prescribed by

The on such NDRC which 1943,28-3219, reads as follows: try appeal shall

“The court and hear an from the determina- agency jury tion of an administrative without a and the evidence by considered the court shall be confined the record filed with testimony the by court. If additional is taken the administrative agency findings ifor additional fact, of of law, conclusions or a pursuant new decision shall be filed to section 28-3218, such findings, evidence, conclusions, and decision shall constitute a part the hearing, of record filed the court. After such the agency court shall affirm the of decision the unless it shall find that such decision or determination is not in accordance with law, or rights ap- inis violation of the constitutional of the pellant, provisions chapter or that of the have not this complied proceedings agency, been with In the before the or that procedure agency the ap- rules of the have not afforded the pellant hearing, findings a fair by or that the of fact made the agency supported by are not the evidence, or that the conclu- agency supported sions and findings decision of the are not its If agency fact. the decision of the is not affirmed the court, it shall be or reversed, modified and the case shall be agency disposition remanded the in accordance with the decision of court.” the quoted statutory provision part above

The as enacted Chapter commonly 240, 1941, Laws known as Administrative Agencies Act, 17, Uniform Practice and became effective March Chapter wrought changes 1941. scope Said fundamental in the procedure appeal review'and from a determina- Compensation tion of the Workmen’s The Bureau. Workmen’s Compensation 1919, 162. It 1919, Act was enacted in Ch. Laws provided that where the final action of the Bureau denies right participate the claimant Com- all at Workmen’s pensation upon any ground going Fund to the basis right, may appeal claimant’s court of claimant to the district county injury provided wherein inflicted. It also party prosecute that either error “as in should have the ordinary judg- civil cases,” thus obtain review the supreme ment of the district 1919, court in the court. Ch. Laws Compensation orig- 17. Sec. Under Act Workmen’s inally appeal enacted an from the decision of Workmen’s Bureau to district court tried indhe upon district court evidence. introduced made record hearing on the before the Bureau. case was tried anew in upon pleadings “according the district court to the rules of filed procedure.” appeared civil Witnesses testified the dis- trict court and the determination of district court was made testimony evidence adduced Laws court. appeal supreme 17. Ch. Sec. On court from a proceeding decision district court in a under the Work- Compensation supreme men’s Act, the case in the reviewed ap- court in the same manner to and the same extent as .on an peal judgment properly jury from a in an action triable to a jury, but might weigh to tried the court without and the court the ascertaining findings evidence to the extent of whether the clearly opposed preponderance or were not to the the of G-otchy Compensation evidence. v. Workmen’s ND Bureau, 49 original 915, 928,194 NW 663. The enactment in force remained change procedure without scope both as to the and of review on appeal supreme appeal the to district court to court, and on the scope appeal supreme until in 1935when the review of on the changed provide party court so as to that “Either shall have prosecute ordinary the error inas the civil and cases, appeals Supreme to the Court such cases be de shall triable scope procédure novo.” 1935, Laws 286, Ch. Sec. 6. The and appeal of on review from a determination the of Workmen’s Compensation changed Bureau to the district court were not and provided original as in the enactment, remained until en- the Chapter made this latter statute 240, 1941; Laws but actment of scope procedure changes both review, of in the and fundamental appeals the of a determination district from as to the court supreme appeals court a decision from and to the Bureau as prescribed by procedure said Under the of the district court. prevailed Chapter since said 1941, which has 240, Laws and compensation Chapter proceedings effective, became Compensation Act all evidence must be under the Workmen’s upon Compensation hearing before the Workmen’s adduced the provides appeal been that after has Bureau. The statute taken to the court a determination of Work- district from Compensation prepare file Bureau, the Bureau shall men’s appeal in the office the clerk court which the of of district original copy proceed- pending or certified of entire is ings may Bureau, before the such abstract record stipulated agreed by parties, including tran- be scripts testimony taken. that all NDRC And 28-3217. hearing appeal, on the trial “the evidence considered by the court shall be confined filed with the court.” to the record NDRC 28-3219. findings appeal fact court the

Where on an district challenged by Compensation made aré Bureau Workmen’s ground supported by evidence, the on the are not scope specifically inquiry by review the district court is question limited to the evidence before the Bureau whether the part appeal certified as a record shows findings by by supported of fact made are Bureau are or not the evidence. The mandate “the court of the statute (Workmen’s Compensa- agency affirm shall decision findings Bureau) of fact that the tion it shall . unless find . . (Workmen’s Bureau) agency are made supported Under the evidence.” 28-3219. NDB.C may judgment their this statute the courts not substitute Compensation findings by the Bureau. fact made Workmen’s They are not to make determination authorized an judicial upon novo, all the trial de and “the evidence as a inquiry goes whether into no farther than to the facts ascertain findings.” support 645; there to 42 Am Juris is evidence the

839 Corp. Pappas, Harvey Ky 18 108, 958, Coal v. 230 73 SW2d Rueping 473; Labor Fred ALR Wisconsin Relations Board v. Co., 673, 398; 228 117 ALR Pine v. 473, Leather Wis 279 NW P Commission, 200, 276, 1287; State Ind. 148 Okla 298 78 ALR Pigeon’s 737; 216 102 NE Ann Case, 51, 932, Mass Cas 1915A Patrick 510, 912, v. J. B. Ham et 119 Me 111 A ALR Co. 13 al, 427; Lewis Ind. 449, v. Commission et 178 Wis 101, 190 al, NW McCarthy 139; 25 ALR Co., 448, General Electric Pa ALR A 116,60 1288. In Society, Federal Trade Commission v. Edu. Standard 112, L US 82 ed the 141, court said: ignore plain

“The do courts have to mandate findings of the statute which makes the of the Commission con- supported by testimony. clusive as to the facts if The courts pick cannot findings and choose bits of evidence to make of fact contrary findings to the of the Commission.” proceedings Compensation

In before the Workmen’s Bureau Chapter (NDRC 28-3222) under Laws 1941 28-3210— Compensation the members of the Workmen’s Bureau are the They triers of the facts. see and hear the witnesses and have an opportunity observe their demeanor and manner which testimony given, may their upon bearing is incidents which have credibility upon of the witnesses, and some instances meaning testimony weight given of their to be there- precisely jury to, same as has a awhen case is tried to the jury judge or a trial when a case tried court. On appeal hearing district court the and trial in the district upon transcript testimony court is had adduced be- fore the ap- Workmen’s Bureau. No witnesses pear opportunity and the district court has no to observe testifying. only while court witnesses has before the cold paper transcript according testimony record specific terms the statute “the evidence considered court shall be confined the record filed with the court.” considering findings 28-3219. NDRC the effect of opportunity triers of fact who had to see and hear the wit- scope nesses, and the natural limitations review findings the of the evidence adduced before triers of and by appellate court has said: court, this fact practioner experience “Every knows how abso of extended parol lutely truth from it in order ascertain the is, essential upon pass the evidence evidence, that the tribunal who is to printed page upon con The the the stand. should see witness radically taining gives, different oftentimes, a the evidence hearing. opportunity impression from that made at the observing or lack of interest the their interest witnesses, and capacities prejudices passions, in mental case, the their and their powers memory, have and of observation and the use and powers, deportment stand, made their on the of these entire many cross-examination, and conduct under and other —these personal observation, circumstances that undoubted attend —are helps ascertaining auxiliaries in all these court truth. Of this deprived, fully. possesses It is while the trial court them is things disregarded, if that, obvious these be will be mistakes injustice finding made, and be fact done. As the based parol presumptions evidence in comes to us with all favor its reaching into our throw must, conclusions, correctness, we support, finding, only full effect of not the balance exceptions, printed but also the full in the bill evidence might reasonably impressions and effect of inferences personal legitimately observation of and drawn from be unmistakably only incline when the witnesses; scales weighed, way, finding we are the other when is thus disturbing Jasper ND Hazen, 1, 5-6, warranted it.” 58 NW 454. proceedings the Workmen’s before that in

It obvious seems (NDRC Chapter 240, Laws 1941 Compensation under Bureau credibility questions 28-3222) of wit- as to 1943, 28-3210— weight testify appear and the the Bureau before nesses who testimony Bureau, that on given for the are to their to be of the Bureau appeal from the determination court the district findings authority to disturb more court no has by supported ground same are that the Bureau on aof the verdict disturb have than it would evidence sub- question had been jury evidence same if the same jury had been made the same determination mitted to jury made Bureau. as was Workmen’s Rueping Co., v. Leather Labor Relations Fred Wisconsin Board Corporation Pappas, supra; Pigeon’s supra; Harvey v. Coal supra; Lewis supra; Ind. al., B. Co. et v. Case, Patrick v. J. Ham supra; v. Labor Relations Board al., Commission et National Geipe 368; Inc. et al. v. Col Co., Link-Belt 311 85 L ed US lett, 165, 190 172Md A ALR 887. 836, 109 Harvey Corporation Pappas, supra, v. con- Coal findings by Compensa-

tended the the of fact Workmen’s flagrantly against contrary tion Bureau were evi- the support dence; and that there was no evidence to the award. province weigh The held court that it was not the of the court to evidence and to ascertain whether the decision of the board the preponderance was in accord the of evidence; the that “the finding Compensation of fact the con- Workmen’s Bureau is support finding.” clusive, where is there evidence to the supra, National Labor Relations Co., Board Link-Belt in- volved an order of the National Labor Relations The Board. provided: findings statute “The as to facts, Board the supported by if evidence, shall be conclusive.” The court held that the statute “entrusted the not the Board, court to draw from inferences the facts,” and that the Board had “the func- appraising conflicting tion of and circumstantial evidence, weight the credibility testimony.” p of 311 US at pp L ed at 377-378. Rueping

In Wisconsin Labor Board Relations v. Fred Leather supra, Co., the court had under consideration the effect find- of ings of the Wisconsin Labor Board, Relations under a statute provided findings sup- which “The to facts, board if ported by the evidence in the record, shall be conclusive.” It support contended that there nowas substantial evidence to findings requirement of the Board. The court said: “The tending support finding there must be some evidence of board, if may weigh and, this is discovered the court not preponderates evidence to ascertain whether it of favor finding.” p at 494. Wis appeal

Where on an to the district court from determination Compensation the determination Bureau of the Workmen’s challenged on the Bureau is the Workmen’s findings supported ground the Bureau are that the sustaining the deter- renders decision evidence the district court findings against attack made its mination the Bureau supreme appeal court from of fact is taken give supreme judgment due court of the district must court, (42 weight Public district Am Jur, to the decision of the court 634), p. Law, and the court is restrict- Administrative Sec. question whether the court to consideration district ed findings holding that it erred had not been shown supported by were not evidence. the Bureau transcript adduced before the Workmen’s evidence part Compensation as a to the district court Bureau certified and appeal from the determination of the Work- the on the record a owned that John Schmidt men’s Bureau shows County. farm He the near Richardton in had rented farm Stark winter 1943-44 on a basis. to his son Prank share In after farm Prank testified that the barn on the burned. that a new should barn burned he and father decided barn his they He a new such barn. built, be that selected location for and stepmother living in his were testified also that his father and together his town but that father and he and worked regularly during busy father the farm season came to and every day up.” “anything He also there came did spend during working testified that father would season his nights in the farm; at the he had his bedroom reserved part main he work the house. He also testified that some did (Prank) wife in construction of barn and that he and his prepared working who the con- the meals the men on arrangement struction re- the barn. Messer As to with lating contemplated a barn construction of John Schmidt he went testified that to Messer house see and was Messer’s at Hebron; that he had heard that Messer and knew carpenter. response questions propounded by counsel the claimants he testified: purpose getting him You.went over there to for the

“Q. see you him to build barn for ? A. Yes. you kind

“Q. What of a deal did make with Mr. Messer ? just “A. I didn’t make much of a deal. I him asked to build spring for me he came barn out with three men— They and two men. built two—he other the foundation and got I everything later he came out the lumber help.” started with helped that he John Schmidt testified build foundation. He also testified: you anything getting help? Had

“Q. said Mr. Messer about “A. two men—he He said said these men worked for years already. him three the man

“Q. One was who was killed? help “A. came two. Yes. He Of I course had some from neighbors. helped my they helped I them build and me build. pay I didn’t them. brought your

“Q. them knowing Messer over without either them? bring “A. He said he would them over. He was barns before.”

He also testified: paid You Mr. “Q. the hour all the hour— way through ? paid guess seventy-five Yah. I “A. I him, it was cents figure, figures. hour. Of course paid I didn’t him he had the I in full. you

“Q. You told Messer what kind of a barn wanted him to build? A. Yes. hip

“Q. it aWas roof barn? A. Yes. you you “Q. After told him helped about what wanted, he you figure picture out the lumber? Did he you? draw a it just

“A. No. I a wanted barn so-and-so, “Q. You told him the of it. size A. Yes.” .job lumber, cut the that he bossed He that'Messer .testified kept men how time and told the to do and record some He also testified: of the work. you you figures gave told how much to make He

“Q. much to make a out for him and check Mr. a for to how check much to make check out for Heinle? and how Burkhardt right. That is “A. way you it he to do ?

“Q. You did the told “A. Yes.” understanding pay that it was his that he was to He testified '

everything that he made out checks. That some he told way” (Messer) it that he “shouldn’t do he said Messer right. that all difference it was He further testified made no neighbors by at the time of the one of the name accident was at work. He also testified: Thomas Joe pay you him? “Q. did How helped pay helped me. I him him, I build

“A. didn’t helped and he me back. house helped your and the You Mr. Thomas work he barn

“Q. did repaying you ? helped helped I him and he hack. “A. Yes. The with same helped helped He a barn and I him and he me Peters. built back.” men further testified the two who

Schmidt lodging; him board with were furnished came stayed usually Friday. farm and at the went home He further charge. that he them with board testified furnished without that we He “We made out would the meals.” He fur said, furnish complete shingles ther testified that he did not have sufficient complete roof. He You testified, “Q. didn’t because work shingles? shingles enough. A. Yes. didn’t .We have We put testimony had half' a side and them on later.” respect inability complete the roof for Schmidt shingles corroborated The uncontradict lack Messer. testimony stopped ed that when the work of lack shows because owing shingles Messer informed of the amount they performed and Heinle for the work had Messer,'Burkhardt parties payable drew checks to Schmidt owing. undisputed testimony also shows so amounts shingling present of the roof when the Messer was not nothing completed do with the construction he shingles. stopped for lack of the work after years farm that he on a until five Messer testified lived about ago 'there, Hebron. That he when he after moved moved carpenter work, also that he worked an he started to do some as working auctioneer and had been auctioneer since 1936- contracting whether he started 1937. When asked penter to do car- carpen- answered, work after he moved to town he “To do contracting jobs ter work. Never until last summer on I two did.” He that he a deal with testified made Schmidt of Richard- hiring ton to build a barn and that he talked to Schmidt about help. you

“Q. what deal did have with Mr. Just Schmidt with regard hiring help ? n up put him “A. He barn for wanted me and he' said can you get help yes I there were some town that went said along put up paid by with me and barns and are the hour. paid

“Q. them? (cid:127) Who - .

“A. did. ... go you You hired Mr. with

“Q. Burkhardt to ?

“A. No.

“Q. did hire him? Who

“A. Schmidt. Did him? “Q. Schmidt talk to n (cid:127) along looking No, “A. he went \ me—he was work. got “Q. farm he When then talked to Schmidt?

“A. Yes..... keep any you pay? Did time or

“Q. records up piece always kept They “A. I it to me. I took a time. left paper they got paid 'a at the end the week and I threw away at the end of the week. present you all? “Q. at the time have no record at So just got paid “A. No, down for the week and we only kept.” I time n Hetestified that he .tools that furnished the he received for That fifteen cents hour the use of the tools. hired he was questions response for to as forenaan Schmidt. claimants’ attorney helped creamery Messer testified that construct a he carpenter. at but that he was not the head Hebron, “Q. And you Yeager job? guess after that took Oscar A. I that is right.” (This creamery testimony, relating to the work on the — Yeager, prior and for Oscar to times to the work on —referred Schmidt.) the barn construction of for He-further testified response questions by attorney: claimants’ you OscarYeager job “Q. And after that took the ? guess right:”

“A. I that is He further testified that he talked to Schmidt town: you “Q. And he if him asked barn could ? build “A. Yes.” they quite

He testified also that barn worked on the three they weeks did not finish the because short were shingles. response questions testified, He also, claim- attorney: ants’ you you you

“Q. went Before there told Mr. Schmidt what going charge your were time aild that of the men? “A. Yes. they going get?

“Q. You told these men what were doing right along.” “A. We were that He further testified: agreement you

“Q. And isn’t it a fact that in you help pay Mr. Schmidt to barn fix ? build pay help “A. Fix and ? right?

“Q. That is

“A. No. say

“You that isn’t if and Mr. Schmidt testified that wrong— help paid “A. I I it—that hired the didn’t—what it. Yes, “Q. No,

“A. you any job claim You never took “Q. contract until the last year ? or so

“A. Yes.” profit

He further testified that made no on the labor of working job, of the men on the all received full pay paid amount Mr. was to and .that he (Messer) pay received the same as the other men with fifteen hour for added the use of cents the tools. He testified: Did Mr. “Q. Schmidt have the fire ?

“A. Yes. Regardless you say of what you

“Q. said, could ? couldn’t work A. there Yes.” response questions by attorney claimants’ he testified: You fire

“Q. could these men?

“A. No. They job you know “Q. didn’t about the until told them about it?

“A. No. bossing they You “Q. were them and if you didn’t do the work could fire them? They working

“A. I don’t think so. They weren’t for me. working were for someone else. . . . your you getting

“Q. Then fifteen cents an hour were got you charged what the above others was what for the tools? “A. I owned the tools. you job you

“Q. It was because were boss of and were responsible supervision for the of the work?

“A. Yes. . . . you figure

“Q. How do Mr. Schmidt could have men these fired you yourself you when hired them took them out and working you? were for paid

“A.' He them. paid way you “Q. But he them in that because told him way? make out checks right.

“A. That is . . .. responsible way yon feel these men Didn’t did the “Q. yon job, took them over there? since responsible ? I felt for them

“A. way they for the did the work? “Q. Yes, answer) .(No “A. yon question you ask before answer that.

“Q. .Let me another responsible Say .you job barn, were took the you Mr. the men did saw Burkhardt and for work right, up doing breaking the lumber and not wasn’t work sidings right putting-up you fire him? —would way. him tell him. didn’t do it that “A. Not fire but He wrong, you him? “Q. But if do it would fire he still continued to a man.' “A. wasn’t that kind He “Q. If he was? I him.

“A. I would talk before fired to Mr. Schmidt Suppose you you Why did Mr. talk to Schmidt? would “Q. hopeless man and he told told him this talk to you respon you responsible keep you were him . way out the barn turned for the sible case. Not in that “A. fire him? to You would have

“Q. guess I so.” Yes,

“A. Yeager to whom one called as witness Oscar Claimants questions pro- by claimants’ counsel had been made reference acquainted Yeager pounded testified that he was to Messer. carpenter him in work for did and that Messer some Val (Yeager) bought farm wanted a new he 1943. That response questions buildings asked He testified overhauled. counsel: claimants’ bought you farm and wanted “Q. You had new I overhauled? right. “A! That is you for the work with Messer? make a deal

“Q. Did first spoke to Messer first. Yes, “A. I supervise work? he

“Q. Did

“A. I He had tools. Yes, think he did. ? He furnished most of the tools

“Q.

“A. Yes. job? your understanding he took the It

“Q. was I be. Yes, “A.. I told him how wanted to to do it ? of the men how “Q. And he told the rest “A. Yes. ' kept kept track hours? “Q. Mr. Messer the books They agreed keep time. “A. Yes. I him track of the asked thing keep I That was one wanted on it that one was track. going responsible for time. know, who was to be you depend keep a record of “Q. Did on Mr. Messer to helpers worked? number of that each of the hours right. “A. That is you pay hour for his

“Q. Did Mr. Messer work and the helpers by the hour for work? their right.

“A. That is you you paid seventy-five recall it “Q. As Mr. Messer cents an hour? right.

“A. That is . . . got “A. The he had reason more was because . . . tools. you wages “Q. Did talk ? alone about to Messer “A. No. group?

“Q. As a group go “A. The whole before started. I had to out to spring work. That I wanted who know keeping getting. the time and wanted to much know how each was getting As much as I know Messer was ten cents more. you pay separate?

“Q. Did each one of them right. “A. That is By

“Q. check? By

“A. check. you right “Q. Did they have the of them if to fire were not doing the work ? way

“A. I felt that it. about you “Q. For if felt in instance, this case that Mr. Burkhardt discharge you go doing him without work could was talking ? to Messer employees I do would I to fire is—if wanted

“A. Well—that firing. my own you you the same as Mr. Burkhardt had hired felt

“Q. You one of them? could fire either hired Mr. and you hiring right, of the men then I if hadn’t had That is “A. upit with him. had to take I would have expected of these men tell each one Mr. Messer to You “Q. do? what to expect. I That much would

“A. responsible you expected him for the fine work to be “Q. And way job was finished? is,—that

(cid:127) you. you take bunch of men like these I tell Well, “A. When carpenter fact first time he was is the fellows—that —in carpenters you so couldn’t— all new responsible why you one be for it? looked to man to That is “Q. complaints going my I make to him. “A. Yes, complaints your would make to Mr. Messer? “Q. You imagine “A. I I would. you him it in turn

“Q. You would tell how wanted done ? would tell the men

“A. Yes.” alleged it In the claim filed the claimants with the Bureau injuries by Rudolph that the were sustained Burkhardt while he working employee as an Messer. In the Val course hearing support before the Bureau was asserted Rudolph employee as a basis the claim Burkhardt was of Val Messer and that Messer was contrac Val an proof tor. claimants had the burden of to both of the contentions advanced. The thus burden rested the claim every requisite ants to establish element or the claim essential Rudolph injury resulting Burkhardt sustained his death Messer; performance while in the of work as an of Val p 65-0111; Jur, 856; NDRC 58 Am North Sec Pace v. Dakota Workmen’s 51 ND Bureau, NW

851 proving 348. likewise had the burden The claimants of independent contractor. Messer was LeBree v. Dakota Equipment Co., 561, 565-566, Tractor and 69 ND 288 476, NW Independent p 479; Jur, Am Contractors, 27 59, 538; Sec Re 124Me 603. Dobson, 305, 128 401, Atl 42 ALR relationship contractee-independent pre- “The of contractor supposes binding parties” (57 contract between CJS, Mas- 352) p determining ter Servant, Sec and “in 580, whether the parties relationship between the is that of master and servant or contractee contractor, resort must be made parties.” in the first instance to the contract 56 CJS, between p Master and Servant, 47. Snodgrass Co-Operative

In v. The Co., Cleveland Coal 31 Ohio App 480, 167NE 470, 496, the “The term court said: ‘inde pendent presupposes binding contractor’ existence of a con parties, tract for a between breach of which of a cause action ‘independent relationship arises. There can be no contractor’ binding par without the existence of such contract between the ties.” person building

A who desires have constructed has the right to exercise control and over direction the work. Where agreement person he into an enters with some to construct the building perform or to certain work in such construction, he may, right may right retain course, or he surrender.the part person control whole or to the with whom he con- person tracts. owner, Whether the for whom the right is to be constructed, has retained control which he possessed or whether or to what extent has surrendered the person engaged same to the whom he has to work is a matter to employment. be determined from the contract 71 CJ 456. agreement parties Where the between the control, is silent to presumed employer, person it is is, for whom being right the work done, has reserved the of control. Mal- linger City v. Co., Webster Oil 211 Iowa 234 254; NW Carpenter, Franks v. 192 Iowa 1398, 186 647; NW Kaus Un- employment Compensation Iowa Com., 415. NW express See also NDEC 1943, 65-0103. the absence of provision agreement right negativing in the control person pre- being

direction for whom the work is done sumptively exists, and the of be nonexistence must party-who person established the asserts that for whom the being relinquished the work' is done has and surrendered right George Chaplin (Calif) of control. et Pac al., ux. v. et Publishing 485, 487; Press Co. v. Industrial Accident Commis- sion, 190 Pac 820; Calif 71 CJ 456.

What was contract between Messer Schmidt and and under agreement wholly what circumstances itwas made? The was oral. Schmidt owned a farm some distance Richardton in from County. during Stark The barn on farm this burned winter of 1943-44. Schmidt decided to rebuild it. He had heard of carpenter. Val Messer knew he awas heWhat had apparently heard of Messer favorable, was for he went to see procure Messer at his home in Hebron to his seiwiees as a carpenter building in the of barn. had Schmidt worked neighbors exchange some of his of labor basis so that he already arranged constructing had for certain men to in work present the barn. He also intended to be and to work at such construction himself. Messer was not a contractor and had never any buildings. for the contracted construction of had But he carpenter worked as a and had acted as a foreman or crew boss in buildings. small crews the construction of farm Messer had carpenter only tools sufficient not for his own use but also to supply needs other workers. Schmidt went to see Messer purpose getting for the him to come and build the barn. There probable nowas pensated solely discussion of the cost. Messer was to be com- hourly actually on an basis for-the hours that he agreement worked. Under the terms their Messer was to be compensated compensated only and would be for the hours performed personal he service barn. He hourly pay to receive the same as other men who worked on wages, the construction for and in addition thereto fifteen cents- an hour for the use of the tools which he had and which be would working used other men on the construction—both men along who neighbors came with Messer and the who worked on exchange basis. It was understood that be Schmidt would .present being would., when work was done and participate would what work, he thus have an to observe opportunity done men Noth- being capacity who worked. was said in the agreement respect right control ing or direction of the workers in the construction of the barn. Nothing was said that surrender right Schmidt would direction control which he or that possessed Messer Messer would have the of direction and control. Schmidt to furnish all the materials the construction. necessary "When came to the farm with him Schmidt he brought men, two Burkhardt had namely, Heinle, re- Schmidt quested at least do. suggested Schmidt had selected site for barn and testified that he had told Messer what kind of a barn he wanted to have built. That it barn; was to be a roof that he wanted a barn hip “just so-and- so” and told Messer of size it. Schmidt testied after the arrival of Messer the two men who him accompanied and they proceeded to construct the foundation the barn and for Schmidt entered and the work. participated When asked what deal he made with with regard Schmidt to hiring- help, Messer stated Schmidt “wanted me to a barn for him put up and he said can I you get and said there help yes were some town that went with me and and along put barns are up paid by hour.” Messer testified that he had done carpenter work but had never contracted until in the jobs on two summer of than 1945—more a after talk with year his Schmidt. He denied that under the agreement he was “to fix and Schmidt pay the help” and denied that he discharge could of the men any working on the construction, paid but them and Schmidt had authority to them. Messer testified also that he discharge record kept of the time the men worked that at the end of each week he to each gave worker a of slip paper showing of number he hours had worked that he asked to Schmidt issue checks to each worker of the amount his so as to pay avoid any suspicion that he a on the (Messer) making profit labor any the other workers.

Nothing £,nd was said in the conversation between Schmidt Messer when to the arrangement relating was made of the barn as to said control and Nothing direction. right

indicating of control surrender would that Schmidt but a contractor had. Messer was a which he direction carpenter. looking contractor, he was was not Schmidt procure per- carpenter. looking to desired for a Schmidt premises and con- owned of Messer to do work services sonal all materials was to furnish Schmidt trolled required Schmidt. building. already had He

in the construction of neighbors employees, arranged on the to work for some —certain perform expected present labor be He construction. he would of the barn. knew himself in the construction Schmidt progressed opportunity to observe work as have any position give in a be if he desired to directions he would performancé opportunity so. He had an to observe do no doubt in the construction. There can be men course of the give give if had desired to and had seen fit to that particular Schmidt obeyed. If he had his have been direction words would discharge altogether stop Mr. work desired Messer or to recognized apparent do so. It have his would complaint testimony had no however, from Mr. that he Schmidt’s being or of make of of the work that had or was done been working. spoke the men He in terms commendation who of Burkhardt and his work. chose Messer because personal apparently the belief He desired services. understanding qualified that Messer and had a better was better of the work had himself and there is not one word than he complaint work that adverse criticism Schmidt as to the or employed agreement performed. Messer was Under the stopped paid wages hourly an could basis. have Schmidt any at he saw the work and terminated Messer’s services time liability. any fit do so all the to without furnished stopped any materials. at fail- He could work time have the provide ing necessary fact, to the materials. Messer’s services building were terminated finished because before the had been shingles necessary to furnish the Schmidt was unable obtain and testimony According finish there was the roof. to Schmidt’s any exercising any giving no or control directions or ^reason doing. to interfere what with the workers were determining person doing “In whether a work for is another

855 compensation employee, within an act, or an con- significant question tractor, the or ultimate is not whether the party being actually is done whom the work exercises control doing worker, work, it, the or the manner method over or of actually supervises, question directs, instructs, or or but real party right, power, direct, control, is whether such has the or supervise. employer instruct, Actual interference regulation the work or control is not of the test, nor is actual right giving instructions; of work or details is pp to interfere that determines.” 455-456. 185, 71 CJ Sec power “It is the control, not the fact of control is principal distinguishing factor in from a servant a contrac Hughes tor.” State ex rel. Co., 597, Woods v. 58 ND 581, Oil Equip. 226 586, 592-593; Dakota NW LaBree v. Tractor and Co., 69 ND 561, 569, 476, 481. NW power

“The test is not the final actual exercise of the right employer power control, but the of the to exercise of con- Henry trol.” 49 RI Mondillo, 142 Atl 230, 232. neighbors While Schmidt had assisted one or more of his constructing apparently procure a barn he desired services of Messer because of his belief that Messer was more any familiar with the work to be done than Schmidt or neighbors arranged exchange with whom he had labor. It strange that in the circumstances Schmidt should not sought give any have to exercise control or directions. testimony entirely Schmidt’s discloses he was satisfied with performance of Messer and the other men who worked on progress and with the that was made of the work. Cemetery In Rosedale Ass’n. v. Industrial Comm., Accident App 706, 708, Calif Pac 352, the court said: right pred- “The fact that there was no control cannot be practice, it, icated an absence of the exercise if the right. employer very fact contract in allows would be likely exercising refrain from a direction or control over employe control, had the mere- as to whomhe undoubted concerning ly employe greater knowledge had a because employer himself.” nature work to be done than did the though may be a servant much more skilled “One so ... 856 folly, and control that actual direction would be

than the master right rather than the exercise of it that to control it is the NE Case, 74, 77, 186 231, 283Mass 233. McDermott’s the test.” Meyer Grady & et al. v. et al. Wis R. Sons Co. In C. Supreme of in con- 408, 411, the Court Wisconsin NW operator Grady question sidering whether one of stone independent “It an contractor said: crusher was an operat- Grady expert in was an here remembered that must ing be perform about the crusher; that to the work crusher required in addition to the two men from three to four men engine operating employed crusher; and the that he in competent only also work, familiar but was not with his own was superintend- employees. fact, Johnson, to direct the other capacity Grady in of a foreman. also acted ent, testified that why and Driesen circumstances, the reason Johnson Under these Grady apparent. give specific becomes directions to did not expert Grady unnecessary, an in his because was were Directions employer person may for in- and liable as such A be an field. juries employee, under Act the Workmen’s 102.01-102.41), though (St not he does direct the even 1925, Sec power long possesses employees, as he work of the direct.” Brewing Hochgreve 448, 143 Co.,

In Madix v. Wis NW (21 Diecker, & Plummer v. Ohio the court 212) supra, “In Pickens St said: necessary pointed that it it was was not out employer It sufficient in fact exercise control. should employer authority fact that the chose so, if to do the servant of the confidence to leave the details to because proper knowledge ability of the work to do what his (137 123), supra, Mass immaterial. In Linnehan v. Rollins, possession right to the effect that fit is the instructions puts upon party right interference, control, person duty seeing that relation does that the who stands duty properly,’ and ‘the test is the exercise absolute power power control,’ to exercise of control but (cid:127) appeal. significant approved characteristics Other usually engaged independent that he is contractor are of an employment carrying or business on an specified given piece for a customarily of work to do a contracts responsible money thereof, result while a and is for the of sum day, usually or month and week, hour, works servant perform- beyond responsible work for the result of the is ing a workmanlike manner.” labor in own his building constructing persons a it is obvious several are

Where progress if work must be a leader or boss is that there progress orderly manner. The work could not in an in an engaged orderly if if five men were in manner, all, at or six constructing building and what a each decided for himself he If do and he do it. a crew of men should how should only it would be natural that one them so situated should or assume role of a leader. be selected Supreme Jersey: of New

As was said Court “Wheth- superintendence management er the master retain the himself it business, or withdraws from and it devolves on a representative, quite principal apparent that, vice or al- is representative may though plans, master or his devise the - provide engage machinery workmen, tools, performance general work, direct neither can, rule, as a continually present at be execution of all such work. It the. necessary consequence planned that the mere execution of the necessary, work and, must be intrusted to workmen, where groups gangs such, or of workmen, and in case that one should be the leader, boss, foreman, selected as to see to the execu- superiority tion of such work. This sort of of service is so every entering essential and so universal that workman, contemplate being a contract of service, must its made proper use of in case. He therefore makes his contract contemplation injury service neg- of the risk of from ligence negligence foreman, a boss or well as fromas superior another fellow workman. The foreman or servant respect, precise position him, stands to in in that of his other fellow Dredging servants.” O’Brien v. American Co., NJL 21Atl 324.

Schmidt decided to rebuild the barn and had selected a site. He went to see Messer to obtain his services. He tes- tified that he “told Messer what kind of a barn” he wanted “just hip that he barn,” roof wanted it “was a build; (Messer) the of it.” He him size “told so” and

barn so gave Messer particularize the directions he as to further did not It understood between to be constructed. to the present while the build would be them, however, position ing being to see that would be constructed and being carried out. Schmidt instructions were his ideas and could, get help, came to' if and when Messer asked accompanied by two men who had worked farm he Schmidt’s work. with and who wanted to Messer on former occasions necessary present. procured materials Schmidt He had they proceeded tak foundation with to construct the Schmidt, ing part present, an be active the work. continued to with a few all the time Messer was and, absences, minor worked doing. Ap there. and what' He observed Messer’s work he was parently being original carried out. Schmidt’s instructions were complaint is that he or had There no contention had made' complaint way being as the work was to make to the done. gave directions which it said that to the workers were is merely given by or of crew as would be a foreman boss a engaged in such construction. A foreman does not become an independent foreman a contractor, is fellow servant or co- —a Ry. of men in the crew. Ell P. 1 ND Co., 336, v. N. 48 12 LRA 26 222, 97, 621; NW Alaska Treadwell Gold ASR Mining Sapp, L 86, 390; Co. v. 168 42 Baruch v. Whelan, US ed Barnaby 178 F2d 13 ALR2d & 382, 1131; v. Roebuck Co., Sears Stukey, 447, Kan 295 Pac v. 715; Nelson Mont Ry. supra, 300 Pac 78 ALR Ell N. Co., 483. In v. P. this gang authority court held that the foreman aof who had to employ discharge superintend per and tó the work employed performance sons in the work for which employed persons employed a fellow servant of the so working gang as a member of the direction under the foreman. Mining supra, the Whelan, Treadwell Gold Co. v.

In Alaska working gang men “A mere foreman or boss of a court held: department employed business, in the same mine, in a them, whether head, is a fellow servant under a common authority engage discharge has to the men lie has or him.” under frequently difficulty

It a matter of is determine whether engaged perform person a who has certain work been independent an another a servant or contractor. Certain tests adopted applied ques- be been in the determination of have person performance tion whether has entered who of certain work for another be classed should servant of person performed independent whom work is as an Christenson, contractor. In Peterson 141 Neb 3 NW2d speaking through 204, the court Chief Justice reaf- Simmons following firmed the statement which the court had made in a “ former decision: ‘The true test of a “contractor” would seem independent be, he renders the service in the course an occupation, representing employer only the will of his as to the result complished. his work and not as to the which means it is ac- ... actual affairs contrac- generally pursues contracting, tor the business of enters into employer piece specified a contract with his ado of work for specific price, employs, a makes his own subcontracts, controls, pays discharges employees, and his own furnishes ma- his own terial and directs and controls the execution the work. of Where these difficulty concur conditions there is, course, no in de- termining only his character as such. It is where one or more lacking question of them indispensable that a arises. The one to element his character as an contractor is that specified he must have to do a contracted work and have the ” right to doing control the mode and it.’ manner of carpenter. contractor, workman, not a was a Messer was —a building. had contract He entered into to construct a a Pie had agreements perform job into to entered work on the for an hourly daily wage. agreement or The between Messer and personal agreement service, was one for Schmidt that —an perform persona] Messer service for should Schmidt an hourly wage, building in the of the barn. Messer enter did not piece specified a with to do into contract Schmidt a of work for specific price. He did furnish own material. He was employ perform not free to and the men to select work in the building It understood that barn. Schmidt should neighbors permitted himself and also that whom to work with be exchange arrangement labor should had made Schmidt testimony not disclose the exact does work. The number. persons of the barn under that worked on the construction exchange arrangement four it does that at least but show such persons worked on construction of very beginning with that himself worked from Schmidt the construction brief absences continued to work until few requested testimony had terminated. The that shows Schmidt bring help. suggested at least that some very in the work at entered outset worked to work and was construction the foundation. He continued working Rudolph shingling Burk- Burkhardt the roof when hardt fell from the on is no conten- roof June 1944. There given any on the tion that Messer had direction as to the work According testimony the board roof. to he removed Schmidt’s prevent safeguard had that been nailed the roof aas sliding who worked on the roof from off the roof. men Yeager; testimony he was to the made Reference has been apparently a contractor. that Messer was called to show questions propounded claimants’ nature of form Yeager sought attorney that it was to show indicate Messer. workers control over work surrendered testimony. gave Yeager, be- He testified his own however, their of them about talked all work he fore the men.started wages. them not talk alone but talked That he did to Messer agreed one group. that the workers He testified all keep Messner to and that he asked track” of time “to expected while the absent keep that he to be He testified track. He being this information. and that he wanted done, work was hourly paid an basis and were all workers that the testified paid more ten an hour Messer was cents he recalled that as for use of the tools because he furnished other workmen than the paid each of the workers testified he other workers. He the by any to fire them if he had the asked check. When way could have dis- about it.” That he “I felt that answered, talking could have charged to Messer and without Burkhardt discharged expected That he tell each Messer. Messer to you. amplifying “Well, In men what to this he said: I tell do. you bunch, a of men these When take like fellows—that is the carpenter a all first time he was fact car- new —in penters you point so couldn’t—” at inter- this the witness was rupted by question propounded another claimants’ counsel. Apparently Yeager explain was about to that in circum- necessary it was to act stances have someone as foreman interruption prevented completing The boss. the answer giving. Yeager’s testimony clearly he was indicates that the relationship employer between him and Messer was that of employee independent and not that of contrac- contractee— tor. England Carpet

In Co., Rait New Furniture and 66 Minn 76, court has occasion to NW determine whether there predicated upon a was sustain verdict fact that evidence party performed certain who work for the defendant anwas independent and not an contractor. The trial court question jury, jury by to a submitted the and the its verdict party that the who undertaken the found ployee work was em- an independent and not an contractor. The defendant moved ap- for a new trial. The motion denied was and the defendant pealed. Supreme Court Minnesota sustained the order opinion denying by Judge a new trial in an written Mitchell, one judges the ablest court of last resort of opinion states. the court said: brought personal injuries

“The action recover alleged negligence throwing caused defendant ice and snow from the roof of below, its into the street plaintiff passing by, which struck the as he was caused injuries complained question It of. is not denied that the wheth- negligent er the itself was, act under the evidence, jury. question litigated person But the main was whether having who was the snow and ice an removed was or was not independent question contractor. The trial court submitted jury to the as one fact. The contention of the defendant party that the court should have held, matter of law, presents ques- only contractor. This necessary in to The it consider. which find tion we occupied by a furniture store. question defendant as the was by leaking, annoyed caused roof had been Defendant president snow, and of ice and the accumulation occupation general company employed Dinsmore, one whose repair as builder, roof, so to to that of contractor and was stop only of the con- to terms The evidence as leak. president testimony employment and tract of is testimony president’s ‘Q. Well, was as follows: The Dinsmore. you? you stop I that did A. did. leak, if he asked him could very says, you I will be can, “I I “if can.” said, “Well,” He stop you go obliged you. and would ahead it. much to I wish stop you go it, will ahead not bother me about the If and and great you; obligations and, when I be under it, details shall bring pay you get your bill, I it.” Mr. Dins- done, it will and says, go you you, I will ahead “I can fix it for and as more “go says, I to.” and don’t bother me “Well,” ahead, tell me ’ up, bring it. Fix it and me the about bill.” Dinsmore testified ‘Q. conversation, follows: was that Dinsmore? as What Mr. along it, A. I remember on the sidewalk. As Mr. Harris came my place, spoke I out and about leaks in was in front running ice, roof, and the the water down the face of the his building forming side, there, on the First avenue and ice and very very thing affair, which made it a bad bad —a building, goods also inside. And he wanted to thought it, if I know I couldn’t fix and told him that I I could. says, you you go if “Well, can, And he ahead and it.” And do you go agree Did Q. of it. was the and substance sum him I would it.’ A. do While it? I ahead and do told regard removing nothing conversation said this was yet understood both it clear it was snow, the ice and part necessary parties done, to be that this repairing preparatory to do work which Dinsmore was pursuance Dinsmore went on to contract, of this roof. employed go up roof, and re- a man work, do the man who down into It this threw move the ice snow. plaintiff. injured the which street ice snow the president during prog- gave no directions of the defendant the work as to done, ress of how should be and, when it was completed, paid Dinsmore’s bill. The defendant did sur- possession building, Dinsmore the control of its render to but occupy carry to it and continued on mercantile its business in employes, public it as usual. Its officers as well as depart that traded there, continued to enter it from as circumstances, was, before. . all . . Under least, at question jury say employing a whether, in Dinsmore to fix roof, this the defendant all control over surrendered ac- removing as to the tions manner of the ice and snow from the building.” roof of the

In Jensen v. App Industrial Commission, Accident 57 Calif employed 1019, Pac a mason, brick Scott, named fireplaces specified Jensen, a contractor, to a build size. Jensen furnished all materials. furnished Scott his own engage^ working tools and charged only the men with him and wages union scale of and the usual foreman’s fee. Mortar splashed eye engaged plastering into while Scott’s he was in with injury. resultant The Industrial Accident Commission held employee independent that Scott anwas and not an contractor compensation and hence was entitled to under the Workmen’s Compensation opin- Act. The court affirmed the award. In the ion in the case the court said: charged percentage compen-

“Scott no and received no other wages, sation for his work than union scale of which was day, plus charge, day a $11 the usual a for the $1 duties performed by charges him as foreman.” Scott’s were based wages said union scale of working for himself and the men with him. Carpenter al., Franks v. et 192 Ia NW question person

court had under consideration whether a put engagement who had entered into an in a certain sewer person being was the for whom the sewer was Carpenter constructed an or was contractor. One plumbing had entered into a contract to do certain building in a school process engaged then erection and had also septic construct line from a tank sewer near schoolhouse tiling away. Carpenter ato line of some distance entered into occasionally agreement Hudson, who contract- one put engaged put Hudson one sewers, to sewer. toed transported work him to him in the assist Franks to killed as place Franks was where work was to be done. Application caving of the excavation. sides result compensation under the Workmen’s made daughter. of Franks’ minor Act on behalf previously employed jobs by on other been “Hudson had evidently making Carpenter. knew him to be efficient in He laying arrangement between Hud- sewers. The excavations go Conroy, Carpenter was that the former would son and help necessary, excavation, make the as was such' secure lay septic pipe tank with or tile connect sewer so already Franks, In addition to Hudson tile drain installed. the foreman, of two other men. He acted as secured the assistance kept provided the number work, the time and determined the day, and what the men work notified of and Carpenter hours should each wages. required pay their of the amount to Hudson per employed job 50 cents each the men on the received and of work, furnished own tools with to do the hour. Hudson his which Carpenter any did furnish of material used but not therein. the present being and done, not, the work did was not while was employed him, as to how fact, Hudson, in or the men direct did, advise that however, the work should be done. He they Hudson drain, the excavation at the tile which should commence per Carpenter time, hour for his did. addition to cents days gas paid for 12 oil and used in his automobile Hudson for taking paid Franks him the of automobile in and also use Conroy. of claim- The arbitration board found in favor to finding by review the Industrial This was sustained on ant. upon appeal by court.” thereto the district Commissioner “at evidence showed Franks that the It contended was independ- employee of Hudson, an was an death, time of his referring Carpenter.” After tests not of contractor, ent employee determining or an applied whether one is in to be “whether contract reserves contractor employee,” power the court proprietor of control over said:

“Applying ns, con- this facts of the case before we test finding that at the time of that the of the commissioner clude employees merely his death Franks and Hudson both Carpenter Carpenter, fully sustained the evidence. employed by at time Hudson knew that him, was Hudson constructing good understood the be a work of sewers and would place charge Conroy. Nothing in man to the work at Carpenter doing said between Hudson as to the manner of anything arrangement is there the contract work, nor which them, or manner in it was carried out, between respect Carpenter any right waived his to con- indicate making manner the time or trol or direct excavation laying any specific the drain. There no occasion right. Carpenter reservation of this present It is true any during progress at work, but, time mani- festly, discharge Hudson, had the Franks, or job absolutely other on the and to direct Hudson in everything putting he did the work in the drain. The fact doing importance. controlling that he refrained from is not of so paid furnished Hudson none the material and was 50 cents per employees. hour time, for his same as the other He position clearly assumed the of foreman, but this was contem- plated by Carpenter employment. at the time of his The tools simple tools, furnished Hudson were and under his contract Carpenter, liability with he assumed no and incurred no financial responsibility. profit He stood no chance to a make or to suffer kept a loss. He the time of himself and the other delivered men, Carpenter, gave it to who or sent a him check for the amount thereby shown to be money due the men. Hudson distributed the by Carpenter only. sent him . . .

“Significance given by appellants is also counsel for to the fact that employed Hudson and the men him determined they how work be they done, should the number of hours would day, they work each begin, at what time would and at what they quit time should what time would take at noon for lunch. These were all matters within the control of Hudson as nothing foreman. There was in contract Hudson the between fixing prevent Carpenter time for the latter from the the they should of hours work and the number to commence

men doing simply day. and left from so refrained each He work not make him an Hudson. This did discretion of to the all charge Employees in independent often . . are contractor. . superintendent, or foreman, a other of, the of, and under control opinion employer. agent that, of not- ... We are the of the charge employment (Hudson) withstanding the was in working and directed manner which the sewer the men the independent did do as an done, he this work the should be representative appel- the foreman and but as contractor, lant.” provides:

The Workmen’s Act for a performs remuneration, for another service one “Where salary, paid commission, otherwise, a or as same is whether the presumed person performing service is to be an em- such the ployee performed person are for whom the services until contrary NDRC1943, 65-0103. is shown. “Every performing person is the work of another found employment person presumed whose work in the to be showing being burden that relation of done, who has the is (Syl 3), Long, Broaddus v. did not exist.” servant master and Transport, Gillette Motor 340, 135 353; Tex Gibson v. 125 SW2d (Texas), 294. 138SW2d prima performing another is labor for

“The fact that one is employment, person presumed evidence of such facie be contrary.” (Syl absence evidence servant George 2), 238. al., et 105 P2d 16 Cal2d Robinson courts to the de- Certain factors are looked to aid person who termination of whether a has entered performance of be certain work for another should classed person performed or as servant for whom work is Among factors elements contractor. place done, the work is be considered is where ownership premises. control of The fact that upon premises employer indicates work is done owned relationship employer and that the is that of

867 independent contractor. v. Simila Northwestern contractee — Improvement Co., 285, 831; 73 Wn 131 P Swam v. Aetna Life Washington Insurance Co. 155 Wn 284 P 402, 792; Recorder Publishing Ernst, v. 199 Co. Wn 91 176, P2d 718. Washington Publishing supra,

In Recorder Ernst, Co. v. court common said: of the “One several law tests or elements relationship considered determination of the between parties place is where work is If to be done. the work upon premises employer is done strong the inference is employees that the workmen are and not contrac- person employed If premises tors. a is to work of another person and for that presumptively, other’s benefit such is, other employee; upon engaging the burden is the one the serv- person ices of ployee.” independence to establish the of the em- premises being The control of where the work is done is person also a factor be considered fact that being whom the work is done retains and has control of the premises parties that the relation indicates between the is that employer employee. 71 CJ 458.

Another factor to be considered in determination of the re- lationship parties compensa- is the manner in which the tion to worker is measured. The fact that the measure compensation upon is based the time works, that the worker daily hourly, weekly as on an or basis, indicates that the relation- ship employer employee. is that of 472, 71 CJ 474; Indus- trial Commission v. 77 Hammond, 414, 1006; Colo 236 P Wyo Fox Park Timber v. Baker, Co. 53 84 467, 736, P2d 120 Meyer Grady, ALR 1020; R. & C. Sons Co. v. 194 615, 623, Wis 217 408, 411; NW Peterson Neb Christenson, v. 3 NW2d Thompson 204; Twiss, Conn 97 Atl LRA 1916E Publishing 506; Press Co. v. Industrial Accident Commission, 190 Calif. 114, 121-122; Rouse et al v. Town of Bird Island, 169 Minn 367, 368, 211 NW 327. On the other hand where the agreement specified do is to work for a fixed sum and compensation lump measure of is based sum usually entire task the worker contractor. CJ 472. supra, Industrial Commission v. Hammond, court said: 868 compensation important, also

“The measure is for where upon piece usually time or the is is based workman a servant, upon lump usually and where it a the based sum for task he is is a contractor.” Meyer Grady, supra, R.

In C. & Sons Co. the v. court said: ordinary many and' and tests, “One usual instances, stamps engaged performing which the decisive one work test, employee independent an an rather than is the fact contractor, wages paid, hourly, weekly upon daily, that that are an or basis.” supra, Christenson, court “The evi-

In Peterson v. the said: supports implied holding a that there was an condition dence plaintiff paid at that was to be labor of the contract his compensation 65 hour. .rate of cents an The amount length depend upon, completion job, not the but would required perform job. is indicative of an time This n employeestatus.” supra, Thompson Twiss, the court said: v. parties, by day payment adopted “The'method of .these contract, relation of than is characteristic of the rather independent employer employee contractor an not of an an too, an So, his contractee. it was characteristic employment that the work to done was not definite, be profit price sum, that it did a not a fixed not include pp upon upon wages the men.” 90 at work Conn 448-449. . person performs the furnish work is to

The fact that the who indicating that the worker for the work is factor materials conversely independent fact he an contractor. And is employer does has been named not do but that does so showing employee. Industrial 469; be an 71 him to CJ a factor Pac 735. v. 241 Bonfils, 78 Colo. Commission of Colorado upon job the work profit to worker The absence of paid him employed fact that sum on it of others profits wages are is indications not Thompson v. 476; 71 CJ contractor. rather than an City Derby, supra; Morgannelli’s 105 Conn Estate v. Twiss, Bemidji Minn 184 Products Co. Atl Barker v. Wood 911; 545, 135 wages getting work; 692. Messer for his “was NW profits Bemidji making v. on contract.” Barker Wood Prod p p ucts Co. 184 Minn at longed at time 370, 238 693. “His be NW irrespective employer, to Ms be entitled to be paid and was of results.” & Brother, Pickens Plummer Diecker and Ohio Rep St 215. agreement provided

The between Schmidt and Messer for by person. clearly contemplated service Messer It he perform, paid performed should for, be service he which personally. assign delegate He could not or contract, work to a substitute, without the of consent Schmidt. 71 CJ 464. Ronning et al. v. al., Carter et Wis 200 NW the court said: independent liberty,

“An contractor at of is unless the terms assign provide, the contract otherwise to the contract or to engage carry others to case, out the In the same, ... instant understanding parties clear is that it was the perform person, Carter was to these services in personal contract amounted one of An service. . . inde- . pendent ordinarily paid contractor is at the rate received by employees. There enters into contract, extent, such a some speculation, the element of and the contractor has in mind larger by ordinary consideration which is than that received employee.” agreement

The between Schmidt one for and Messer was personal by Obviously agreement service Messer. could assigned by delegate not be Messer, nor could he the work without substitute, consent Schmidt. There no understanding agreement length or as to the of time that Messer probable aggregate should work or as to the amount of his wages. only understanding pay The was that Schmidt would hourly wage, an the same the other as workers who paid wages, per were to be with fifteen hour cents in addition for the use the tools which for Messer furnished the use compensation all the workers. Messer towas receive no other hourly payments. agreement than his If the between Schmidt say majority and Messer was such then Messer was pay receive a smaller take home than the other because workers requird pay wages he would be he received out payments premium Bureau, to the Workmen’s wages paid workers. to the other based person determining employed important whether a test or a servant is an contractor certain work to do employer. is reserved work which the control over personal another, performs “The services fact that one presumption, compensation, agreed with it the carries beneficiary right employer discharge or control and Transport, Inc., al. Motor of the services.” Gibson v. Gillette et (Tex.) 293; 1943, 65-0103. 138 SW2d NDRC person done, have work

At outset a who desires to certain say building and who enters into a constructed, to have a right with another to construct the has contract power continues to have work, or of control over the relinquishes may right power it. He sur- unless and until he per- person engaged to render the to the who is control may agreement it. If the for the form the work or retain right performance of control, work as it is silent to presumed employer it. In case that the has reserved this nothing right parties to the of control. was said between as occupied performed premises The work was to be on owned and by necessary all for the Schmidt. He to furnish materials was building all materials. and he did furnish such construction present and when the work was was be where Schmidt to performed participate to work himself. He was to be present and work; participate

and did Schmidt had assign persons paid by himself as workers in to selected and persons constructing assign he such and the barn and did performed All to work. the workers were be furnished board brought by Messer and the two men that Messer and Schmidt furnished, him work on the construction were to be to with premises. lodging and furnished, on the Messer were and paid, paid, to and came with him were be were men who two hourly compensation wages measured basis. Messer’s was profit by personally. He no that he worked received hours any He not to of the other workers. was from the work of hourly wage upon any compensation in addition to receive completion building. Before the work commenced generally had informed as Schmidt Messer to to referring location and constructed, its size. to what he just “I said, Messer he he told wanted barn so so.” He particularize what does he meant barn to so “a. imparted presumptively so,” but he what Messer he had present participate in mind. be Schmidt was to in the opportunity transpired. work and thus have to observe what present. give any opportunity He He was had instructions might gave or He orders he have desired. none and his testimony any give fails disclose that he had occasion to any objection single or order direction he or that had a to voice transpired.- anything that Messer testified that he fore- man and Schmidt when first examined a member the Work- Compensation Bureau also men’s stated that Messer was the though given Even foreman. no direction was to Messer, he objection by leader boss there act as or no did Schmidt. transpired. Apparently with what He was satisfied the direc- given beginning being tions had in the Schmidt carried complaint being any out, he had no what was done or give. being It orders directions to was his barn that was hourly paying built. He was on an basis the service rendering. present being He was and observed what was incompetent done. If Messer had been and wasteful and detri- practices likely been mental carried it is not on, that permitted practices would have remained silent and to con- quite apparent testimony tinue, and is from Messer’s might give or direction that Schmidt have order seen fit respect including discharging to the an order work, Messer from obeyed. work, would have been The continuation of the work depended upon necessary being by materials furnished Schmidt. by could have terminated the at work time with- holding shingles materials. When sufficient available, were not worlrstopped the and both Schmidt Messer treated work the paid everything as terminated. Schmidt testified full, As in proceeded and he thereafter to finish or have the fin- help ished without when the of Messer. It clear that seems light together in of, the evidence this case is considered 872 ample applicable presumptions that there is evidence from

with, the fact could that Messer which triers of find was an “ or not of control existed is ‘Whether the Schmidt. usually

ordinarily question jury, a arrived of fact for the is of the character contract, at inference from the terms employment, all and circumstances. relevant facts dispute, more than inference can When facts are one ” question jury.’ for the drawn is LaBree therefrom, be Equip. 561, ND The Dakota Tractor and 476. Co., 69 NW question only court one of law for the where becomes only susceptible single reasonably is a inference. evidence Am 540. Jur Compensation heard

The of the Workmen’s Bureau members They they opportunity had an witnesses s.aw testified.. appearance observe on the witness and also to their stand ques examined, manner which the witnesses were the form of propounded given. answers This was tions that were and the experience members. course of novel for such performance of numerous their duties conducted hearings questions were where involved. As was similar similar Craig v. N. in State ex rel Dak. Workmen’s this court said ND 207 NY 557: Bureau, very continuing function, bureau, nature of its “From necessarily great personal body, investigate numbers of must injury every can- conceivable character. Its members cases of expert than themselves in more or less not become otherwise judge injuries. relating personal The bureau was matters to credibility weight evidence and the of the witnesses of the it.” who testified before applicable contemplate Bureau’s

The no statutes review except there ascertain whether determination the facts as to support findings no evidence evidence or there is support them. ample fairness the eminent

The evidence of record bears every afforded Bureau. The claimants the members opportunity in- produce witnesses, to examine evidence and sought for com- cluding liable hold the claimants Messer whom hearing con- pensation for the death Burkhardt. attorney for the tinned from time to time. The- claimants was permitted the limitation to examine witnesses without either questions pro length or form of as to the of examination testimony pounded. all evidence had been After sub Compensa mitted and considered members of the Workmen’s unanimously tion Bureau reached the conclusion that the evi employee an dence failed to show that Burkhardt was of Messer contrary but that on the the evidence established Burkhardt judge an The district Schmidt. before whom appeal carefully analyzed tried considered and all the findings evidence reached the conclusion that the fact Compensation fully supported Workmen’s Bureau by appeal accord the evidence. from by Compensation a determination the Workmen’s Bureau compensation application statutory, governed is and is by statutory applicable provisions. and constitutional Compensation, p Am Jur, Workmen’s Sec 899. Crandall v. Compensation Bureau, N. Dak. 53 ND 636, Workmen’s 207 NW Compensation Craig 551; ex rel. N. Dak. State Workmen’s supra; N. D. Const. 86. Bureau, Sections pointed appeal been where out, As has on an from a determina Compensation findings tion of the Workmen’s Bureau the of fact challenged judicial inquiry goes are no farther than to support findings. ascertain whether there is evidence findings Unless court finds that “the of fact made agency (Workmen’s Compensation Bureau) supported are not duty the evidence,” it the court to affirm the decision appeal the Bureau. NDRC If 28-3219. is taken from n question presented decision of the court, district the sole this clearly court is whether the decision of the district court is wrong. my opinion In the decision of the district court involved appeal on this is correct and should be affirmed. majority opinion findings is asserted of fact question

are insufficient. This not raised before Work- men’s peal ap- Bureau before the district court on appeal nor has it been raised on the to this court. It is majority opinion. raised for the first time in the In the claim which proceeding formed basis of the before the Workmen’s an that Burkhardt was it was averred Bureau

Compensation state- said, the except was Nothing of Val Messer. employee hearing On of Val Messer. the that he was an employee ment question one ultimate pre- there was only Bureau the before an of Messer. Burkhardt was employee whether sented, namely, by was further advanced hearing of there the course the In was the that Val subordinate contention the claimants that Burkhardt in contractor and consequently an independent an of barn on the construction Schmidt’s work performing made of that The fact findings of Messer. Bureau employee the in his at time of the injury resulting Burkhardt “Rudolph and also made a of John Schmidt” employee was an death to law. the notice the district appeal conclusion of similar fact in- was no claim that the findings court there In the of error was that “Rudolph said specifications sufficient. in Burkhardt one Val Messer the month employed by became helping con- June, 1944, said Val Messer purpose Schmidt of Richardton, struct at the of one John request barn North the said Messer to construct said Dakota, who hired Val employed and the Val Messer the said having said assist him therein.” It is further stated “that decedent further in Bureau erred Compensation Workmen’s finding she is the claimant has failed to entitled prove participate Fund” and “that Compensation in the the Work- Workmen’s erred finding men’s Bureau the said Compensation at time of injury Burkhardt was resulting Rudolph of John The death an Schmidt.” claimants difficulty apparently no attorney understanding their as to the complaint There no findings. sufficiency as to facts found. If the complaint findings. findings insufficient, they to be had avail- deemed claimants make remedy by the Bureau to adequate requesting able findings specific additional as to or evidential facts. subsidiary 224; 480, R. 202 Minn 279 Co., v. NW Minneapolis Ruud Street Prairie Haid, State rel Mo 62 869; ex Probst v. 333 SW2d & Garr, Oil See, also, Gras 235 522. Co. 109 Okla Pac King, Scott & 867. It must be Co. v. ND NW Spaulding, presumed that if would request had been made the Bureau findings appropriate found made such additional have by 42 Am Admin- the evidence. Public Jur, to be established seq. p 580 et Law, istrative pointed out it the function of Workmen’s

As has been testimony pass Compensation witnesses, Bureau hear the credibility, weigh testimony and make reasonable their weigh are not authorized to therefrom. The courts deductions findings make of fact. The district court on evidence weigh appeal only evidence is authorized review findings by determining whether the of fact extent supported or are not Bureau are Workmen’s findings are insufficient, the evidence. If the the Bureau authority findings. court no to make has should be remanded circumstances the case to the appropriate may that the directions order Bureau Bureau findings duty necessary perform and make fact, its “either hearing parties exigencies without, a new as the with, or may ALR 201. Anno 146 be.” ease judg- of this record, case, circumstances On appealed affirmed. from should be ment 7260]

[File No. Respondent, R. ANTON KAUTZMAN and CARY, R.C. Appellants. KAUTZMAN, ELIZABETH (53 99) NW2d

Case Details

Case Name: Burkhardt v. State

Court Name: North Dakota Supreme Court

Date Published: May 1, 1952

Citation: 53 N.W.2d 394

Docket Number: File 7289

Court Abbreviation: N.D.