296 N.W. 504 | Minn. | 1941
Relator Trimble was engaged in the real estate business in Minneapolis. He employed one Brundage to move his office furniture, equipment, and safe from his office in the Security building to an office in the Hodgson building, which is across the street.
Brundage was regularly employed hauling and making deliveries with his own truck by three small concerns on a piecework basis. Over 90 per cent of his work was for these concerns. They controlled and directed him in his work and at times had other employes assist him. He took odd hauling and trucking jobs as they came his way. He had no office and kept no records or books of account. Telephone calls for such jobs were taken by his wife at their home. He did not hold himself out as a moving or trucking contractor. *393
Decedent was employed as an upholsterer. During time off from his regular employment he was employed occasionally by Brundage as a part-time helper in doing the extra moving jobs.
The day before the Trimble moving job was done, Brundage was called by telephone by a third party to do the moving for Trimble. Brundage arranged with decedent to assist him at an agreed wage of 50 cents per hour. On April 22, 1939, the two men went to Trimble's office in the Security building. After looking over the chattels to be moved, there was some discussion as to Brundage's charge for doing the job, but it was finally agreed that it would be between $4.50 and $5.00 depending upon the character of the work and the amount of time consumed.
There was evidence that Trimble exercised control over Brundage and decedent with their acquiescence by supervising the performance of the work. For example, he gave directions as to the manner of moving a roll-top desk and that the safe should not be moved until he had ascertained whether Brundage's truck was too light for the purpose. After Trimble had examined the truck to determine its suitability for the job, the men took his belongings from the Security building office, put them on the truck, and moved them to the Hodgson building.
When Brundage and decedent were pushing the safe on its wheels off the truck over some planks onto the elevator in the Hodgson building, the back wheels slipped off the planks onto the floor of the elevator, causing it to sag and the safe to tip against decedent so as to pin him between the top of the safe and the wall of the elevator shaft. Decedent died from the injuries thus sustained.
At the hearing the referee excluded a certain exhibit which was offered by relators, but it appears from the record that the exhibit was considered by the commission.
The commission based the award of compensation upon a finding that decedent was an employe of Trimble. This was upon the theory that Brundage was an employe and not an independent contractor and that decedent was simply Brundage's helper. *394
Relators contend that decedent was not employed by Trimble, but by Brundage, whom they claimed was an independent contractor; that the accident did not arise out of and in the usual course of Trimble's business; and that the commission erred in failing to consider the exhibit to which reference has been made.
1. The test by which the relationship of the parties is determined is right of control. A servant is one who is employed to perform a service in which he is subject to the employer's control as to the details of the work. An independent contractor undertakes to do a specific piece of work for another without submitting himself to such party's control as to the details and binds himself only as to the result. Lemkuhl v. Clark,
Brundage's employment of decedent as a helper is not decisive that Brundage was an independent contractor and that decedent was Brundage's and not Trimble's employe. One who is hired and paid by an employe to help in performing the employer's work with the latter's consent and subject to his control as to the details of the work is an employe of the employer. Dahnert v. Township of Otisco,
An inference that Trimble had such right of control was permissible. There can be no serious dispute that he knew of Brundage's employment of decedent as a helper and that he exercised such control over decedent as well as Brundage. The evidence supports the finding that decedent was an employe of Trimble.
2. Relators concede, in accordance with the well established rule recently reiterated in Chisholm v. Davis,
An injury is regarded as arising out of and in the usual course of the employment where the employment exposes the employe in special degree to risk of the injury. Trimble kept an office as a place in which to transact his real estate business. The office was the means which he used to carry on his business. Injuries to an employe while engaged in the work of supplying the means by which the employer carries on his business result from risks to which such employment exposes him and therefore arise out of and in the usual course of the employer's business. Such means may include an office, store, factory, or other structure used for the business purposes of the employer.
We held in Colosimo v. Giacomo,
Of course the cited cases did not involve the question whether an injury occurring to an employe while engaged in moving the employer's property with which he conducted his business from one location to another arose out of and in the usual course of the employer's business. Moving is an incident of maintaining an office. In Pace v. Appanoose County,
The moving was as Trimble, himself, testified simply an incident in the general carrying on of his business. The evidence sustains the finding that the injury arose out of and in the usual course of the employer's business.
3. Where it appears that the commission considered evidence excluded by the referee, the error, if any, of the referee is harmless. All that the law requires is that the commission should consider the evidence. Cieluch v. Economy Tire Battery Co.
The respondents are allowed an attorneys' fee of $100 in addition to the costs and disbursements taxable in this court.
Affirmed and writ quashed.
