*1 HATTIE CAMPBELL v. CONNOLLY CONTRACTING
COMPANY AND OTHERS.1 February 28, 1930. 27,608. No. Foster, L. N. for relator. Sullivan, Campbell.
Beuther &
Hattie
respondent
&
Sanborn,
Fisohbach,
respondent
Graves Andre and John W.
insurer.
Dougherty
Royal Indemnity Company,
Morris
its
J.
Hilton,
Connolly
Certiorari on
Contracting Company
relation
commission awarding compensa-
review an order
the industrial
1 Reported in
tion Albert, Helen, children, Alice, minor three and their employe, death. his dependents, M & and the D) to as (hereinafter referred & Dougherty Morris *2 as the com- referred to (hereinafter Connolly Contracting Company business, that kind of substantially in the same engaged were pany) in Paul. For St. officesof each were contractors. The general employe regular had been a five Albert years with the working half had been For a and a company. year The excavating and Avork. in grading steam shovel here involved At Avork. D construction of M & was railroad principal business a in work for D such engaged M & were question time here of a and need were railway Janesville, Wisconsin, at company company custom of the job. steam that It was the shovel for Avere who employes furnish its OAvn rent out its shoArelsand to them. operate Avithand go along operation familiar with their agreed purpose M &D for that company contracted with the union scale pay regular a for and to pay day the shovel started June arrangement men thus furnished. This other particulars 1928. differed in amount and Avages The Forseth, oiler, M & D. regularly Campbell, those paid the former work, for the engineer, company were sent increased per pay and the latter hour with receive 66 cents $1.10 of M & D, and appeared payroll overtime. Their names on the M & D. were according agreement they paid to the company maintained Avas always that had practice for time any job on outside hours’ employes eight pay to allow its Paul. to St. returning of work and place consumed going M D& trips. used for such Frequently the car of one of them was railway transportation secured for and delivered to knowledge (with men. However for the (free passes) used, using the men objection) Avithout it Avas railway transportation to Forseth. The belonging automobile knowledge D With the company. to M & was returned at Janesville and of the work M & superintendent D’s 418-
without any objection, the men started for St. Paul, using the car question. On that trip they were both killed in a railway grade crossing accident. day’s
The last work with the shovel at Janesville was on June when it was loaded on a flat car Marinette, for shipment to Wis- consin. Campbell paid not only for day that but also on the evening thereof paid for eight additional hours covering the time allowed for trip home. Whether this was considered as pay for 18 on hours the 22nd or ten hours on that date and eight hours on the 23rd is immaterial.
The referee held that Campbell was an of M & D. employe On appeal the industrial commission, using the evidence taken before the referee, by a vote of two to held one, an em- Campbell was ploye the company. The referee and all the commissioners were agreed that the accident arose out of and in the course of the de- ceased’s employment. The evidence was sufficient to permit this holding, and we do not further consider it. only question here involved is as to which one of the two concerns was the employer *3 of Campbell. In determining question this all of the is to evidence be considered, just not parts of it. From such consideration we reach the conclusion that company the employer. the Each party to this controversy finds in support the evidence certain of its contentions. Under the familiar rule Dunnell, referred to in 1 Minn. Dig. (2 ed.) 411, and cited, cases the action of § the commis- sion cannot be disturbed.
The company had no in interest railway the contract. It was only interested in receiving per day for the and having shovel it well cared for and properly operated by two of its own men. There was no arrangement made M &D as to what men should be sent; they made no contract with them as to or wages otherwise; the whole contract was made the company. Campbell and Forseth, after finishing the work at Janesville, go were to where they were sent the company further work on shovel, the same in this case to Marinette. On June they went to Janesville for on the shovel because the In so directed. so doing obeying company’s orders, they the the same as would they were to they company’s if remain the em- any of its orders desired ployment. of operation
M & D the immediate say place relative to amount to be hours of Avork gravel handled, shovel, but had particular matters, other details incident to those like of taking no men in manner care over the relation authority M operation. the shovel or the incidental details of such & D did not men in instance; select the did not have the first (either or discharge them men their OAvn put selection regular or other employes Avise) of the shovel. The situa tion did not of M & D. above described make an employe Percy O’Rourke v. Vittum Minn. W. Co. 166 207 N. part
cases cited. A regular business Avas Avhich letting out, compensation, question, the shovel Avas to be it. operated by tivo men selected
This case is one Avhereunder the facts the definition of an “em-
ployer”
4326(d),
as found G. S. 1923
(
“The term shall mean every person not ex- cluded by section Avho another to a employs perform service for hire and to Avhomthe ‘employer’directly pays wages.”
The one who pays wages direct is not under all conditions an employer. payment Such is of course a to be circumstance con- sidered many and in tests are at controlling. Many instances is times to determining question be considered Avhois as employer. As was said in Joncas, Ledoux * * * 635, 636, “Each case must controlled be its own rent facts.” The for the shovel with amount price earned men paid by constituted the consideration *4 M & D by services the company. rendered was an shovel independent furnishing contractor in the of the and its it; agreement men to run fact that attending under M & D pay paying were to the men direct instead of the amount
420 and paying to the turn the men of their is of consequence. no authorities have considered all the referred to relator; they
We we contrary are not the conclusions have reached. State ex rel. v. 147 N. Court, 12, D. M. Co. District Minn. 179 216; Gilmore W. 154 Minn. N. County Redwood, 338, v. 191 924. Arterburn W. 649, B. Co. v. Ind. Starbuck, of Crawfordsville S. 80 App. The cases 7, Meyer 141 N. E. and C. R. Sons Co. v. Industrial Comm. 194 N. are 615, cited, easily distinguishable Wis. 217 W. also 408, injured In case en- person instant case. the Wisconsin was the control of the contractor which he tirely corporation under had the crusher for the furnished; greater been sent owner of operating time he used for other than part being had the crusher; paid by which contractor, its own men in of the crusher. discharge him; put could there not recited all facts in the appearing evidence; We have An are others that conclusion reached. support employe also let the owner thereof accompany instrumentality furnished to an are involved, under conditions such as here remains another, v. 221 Antonelly 438, of such 175 employe Adam, owner. N. Tschida v. 179 Minn. 228 716, cited; Bratt, 277, W. and cases N. E. 922; N. Driscoll v. 181 Mass. 63 Standard 935; Towle, 416, 480; L. ed. Anderson, 215, 252, Oil 212 S. 29 Ct. 53 Co. v. U. S. 174 Cal. 163 Country 395, Industrial Acc. Comm. Claremont Club v. 117 E. Clancy’s 316, P. R. A. 228 Mass. N. 209, 1918F, 177; Case, L. (2 24, 25, 34, 59, 1 Labatt, ed.) Master and Servant 347; §§ Mich. Arnett v. Co. 201 page Hayes 176 and cases Wheel cited; N. Jacobs, 166 N. W. 204 Mass. 957; Shepard 232 Mass. 648; Case, A. R. Emack’s (N.S.) L.R.A. S. that is on all E. 86. no case can found Naturally be necessary. nor is it case; fours with the instant counsel have arguments oral we In addition briefs and one filed referee also benefit of a memorandum findings of the of the commissioners. each industrial case, and we this of the establish facts majority commission *5 affirmed, thereby. are of commission is bound The order dependents. fees of are attorney’s the sum allowed Affirmed.
Wilson, C. J.
I dissent.
Stone, J. (dissenting). It wrong. the decision is the conclusion that escape
I cannot & Morris company and Connolly of both the the intention ignores to, going that and Forseth in Both supposed Dougherty. job the em- the Wisconsin were on, returning working job from the & to and ployes Dougherty. Transportation of Morris time for the whole firm, furnished that and the to be of agree were them. I the conclusion Commissioner paid of invoking the of construction a contract McColl, practical rule & says Dougherty “paid thereto. He that Morris parties any on the far direction wages and directed the labor so that they reported being the death as necessary, and, finally, & did that everything of of Morris employes. Dougherty one their doing usually respect employe. an does with to an employer & of the things of all and the failure Dougherty, these Morris them, of is evidence of Connolly Contracting Company any do on contract the interested practical placed construction firms.”
I
at all
idea
or in connection with the
go
cannot
with the
that on
of Camp-
work the
had over the actions
Connolly company
Wisconsin
of
master
any
bell
Forseth
the control characteristic
that of a
of
enough
they
go
over
selected them to
his servant.
It is
that
very
they
the machine. Neither is
material
that
discharge
thing
doing
them.
is that in the
right
controlling
any-
&
of
the work the control Morris
excluded that
Dougherty
of
in the
body
Had
men been
guilty
negligence
else.
either
a third
had been
operation
party
of the shovel Wisconsin and
Dougherty
latter’s
-injured,
recovery against
Morris
that
reasonably
questioned upon
been
the ground
could not
have
employe.
at
servant was not its
negligent
the time
In my judgment the case is a plain one for
application
the common law
principle
where an employe, by a contract
between two employers, definitely leaves the service of one and as
definitely
enters that
the other for stated purposes, he should be
considered the employe of the latter. That
applies
rule
to cases
arising under the workmen’s compensation act. 1 Schneider, Work
men’s Compensation Law, 113;
Case,
Scribner’s
“Where one person lends his servant to another for a particular employment, the servant, em anything particular done ployment, must be dealt with aas servant of the man to whom he lent, is although he remains the general person servant who * * * lent him. The test whether, particular is service which he is engaged direction perform, continues liable and control of master, subject his or becomes that of party to whom he is lent Cyc. (39 quoted or hired.” 26 1285 558) C. J. approval Puhlman E. & 393, v. Excelsior S. C. Co. 259 Pa. A. 218, 103 L. A. 219, 1918E, R. and Tarr v. 118, Hecla C. C. Co. 519, (2 265 Pa. 109 A. 1 221; Bailey ed.) Personal Injuries, 50, seq. Kelly Tyra, et See also v. 103 Minn. 114 N. 750,W. N. 17 L.R.A. (N.S.) 334; Tuttle v. H. Farmers W. Co. W. 938.
I cannot that Antonelly Adam, see 175 Minn. 221 N. W. 716, is much point. simple That was a case automobile for a funeral, applicable driver furnished and so the rule letting of a and driver for was invoked. It was a case vehicle hire whom the hirer directed merely go, where the chauffeur where to that he carry and what routes to and so it was considered take, managing remained the servant the owner the matter owner for his operating responsible the machine so as to make the now very pre That is a different case from the one negligence. is a shovel or other sented, subject power where the the bailment and far machinery goes definitely similar which contract piece of a beyond doing and control of the owner possession both, work which will which require time, during a relatively long machine and necessarily the men who be under the operate must constant direction of directs its the hirer. The work is his. He performance in detail. men who every How comes it then that the do it are not ? his servants VEIGEL, BY A. v. SCHOOL BANK, J.
SOLWAY STATE COUNTY.1 BELTRAMI DISTRICT NO.
February 28, 1930.
27,630.
No.
*7
1 Reported in