Cеrtiorari to review a decision of the industrial commission awarding compensation to William J. Fahey, respondent.
*433 The sole issue is whether the evidence sustains the cоmmission’s finding that the relationship between Theodore Terp, the employer, and Fahey was that of employer and employe. Employer contends that the evidеnce as a matter of law requires a finding that respondent was an independent contractor.
In Lemkuhl v. Clark,
“In determining whether the relationship is one of employe or independent contractor, the most important factor is the right of the employer to control the means and manner of performance. Other factors to be considered are mode of payment, furnishing of materials or tools, control of the premises where the work is to be done, and the right of the employer to discharge the employe-contractor.”
In the light of the above rule, it becomes important to ascertain what arrangement was made between Terp, the assertеd employer, and Fahey. 2 We turn to the facts.
Terp, who was regularly engaged in the ice business and knew nothing about roofing work, bought an old frame building which required certain repairs, inclusive of thе installation of a new roof. Fahey, having heard that Terp needed a roofer’s services, made an appointment to meet him at the building. Fahey contends that he then entered into an agreement whereby he was employed and paid by the hour at the regular union scale. Terp testified, however, that Fahey agreed to dо the work on a contract basis of $50 for the entire joT), subject to the furnishing by Terp of a helper and certain materials. Edward Wilson, who later helped lay the roof under the supervision of Fahey, was present when Terp and Fahey made their agreement, and he heard Fahey say to Terp that he would take the contract for $50. Carl Nelson, the cement contrаctor, who had known Fahey for seven or eight years, testified that in the course of the roofing work Fahey told him that he was going to get $50 for the jolt and that he was going to make pretty gоod money. Before the roofing work had been completed, Fahey fell down and burned *434 his arm with hot tar. Although he tried to finish the job, he could not complete it entirely because of pain. Fahey, desiring to go to his own physician, was taken part way there by Terp in his automobile. When they parted, Terp handed him a check for an evеn $50. Fahey admitted that, according to the union scale of $2.15 an hour and the number of hours worked, he would not have had as much as $50 coming to him on an hourly basis. He said, however, that Terp included an additional amount for cab fare.
At the time the work was undertaken, Fahey was regularly employed about four days a week by a sheet-metal and roofing concern. He testified, however, that, outside of his regular employment, he sometimes
on Ms own
took small roofing jobs
by the job,
but that he had to be careful because it was contrary to union regulаtions to take jobs as a contractor, and the union had made it hot for him. In other words, although he belonged to the sheet-metal worker’s union and regularly worked as an еmploye on sheet-metal and roofing jobs, he did from time to time, on a part-time basis, pursue as an independent calling the distinct occupation or business of a roofing contractor. Where the work performed by the actor coincides in character with that of his independent calling or separate business, there is a basis for an inference that the right of control as to the manner and means of performing the work was not retained by the employer. The converse thereof, of course, is also true. Although Fahey, for his regular occupation, engaged in roofing work as an employe for another, he contemporaneously therewith toоk roofing jobs on a contract basis when he was not working a full week. See, Restatement, Agency, § 220(2) (b). The work he performed for Terp was a small job which could be completed over the week end and was ideally adapted to a part of his independent-contractor activities. As held by Lemkuhl v. Clark,
Fahey furnished only the hand tools of a roofer, namely, a hammer, a roofing knife, and a pair of snips. Terp supplied all materials such as рaper, asphalt, nails, mops, heating barrels, and ladders. It goes without saying that the furnishing of materials and tools is one of the factors which may be considered in determining thе actual relation of the parties. See, Graf v. Montgomery Ward & Co. Inc.
The findings of the industrial commission — even though, as in the present case, concurred in by only a majority of the commissioners— are entitled to great weight and will not be disturbed on appeal unless they are manifestly contrary to the evidence. In this case, the findings are manifestly contrary to the evidence as a whole, and there must be a reversal. In this determination we have not overlooked the fact that Terp — who carried no compensation insurance — paid the medical bill, as well as certain installments of compensation. In the light of other controlling evidence, little probative value is to be attached to these payments as evidence of an admission by Terp of an employer-employe status.
The decision of the commission is reversed.
Reversed.
Notes
Larson v. Le Mere,