The respondent Hutchinson Produce Company is the owner of a building in Granite Falls in this state, where it dеals in and stores butter, eggs and .poultry. The respondent Hartford Accident Indemnity Company is its insurer under the Workmen’s Compensation Act. The business of the produce company was managed by a man named Johnson. The relator is an experienced well driller. Johnson asked him to drill a well on the produce company’s premises. The site of Granite Falls is underlaid by granite. Drilling а well to the depth where water is found is a difficult operation. It cannot *330 always be accomplished successfully. The relator did not agree to complete the well or to drill until he struck water. Both he and Johnson knew that it was uncertain whether a supply of water could be procured. Relator told Johnson he would not drill at a fixed price per foot, аnd Johnson said the produce company would pay “what was right.” Johnson kept “tab” on relator to see how many hours he worked. He was paid on the basis of a day of 10 hours. Relator began to drill on July 5, 1924, and continued until July 21, when he stopped work at a depth of about 70 feet bеcause the rock was so hard he could not go on without a different drill. He was paid $300 in all, рayment being made on the basis of the time spent in drilling. Relator owned the well-drilling machine and hаndled the drill himself. He employed and paid a man to assist him. He made no separate charge for the use of the machine or for the services of the man he employed.
On thе last day he worked, relator stepped on a board in which there was a projecting nail. The nail passed through his shoe and into his foot. The accident arose out of and in thе course of his employment. As a result of the accident, an infection developеd and relator’s leg had to be amputated below the knee.
The referee who toоk the testimony found that the relator was an employe of the produce compаny and awarded compensation.
On appeal, the Industrial Commission vacated the finding аnd set aside the award, holding as a matter of law that the undisputed facts showed that the relаtor was an independent contractor and not an employe of the produce company. A writ of certiorari brings the record to this court for a review of the decision.
Whether a workman claiming compensation for an accidental injury was- an indepеndent contractor or an employe has recently been considered in a number оf cases. Herron v. Coolsaet Bros.
The fact that rеlator furnished the drilling machine is of no particular importance. The situation is much the same as in cases where a man is hired to haul gravel in the construction of a highway and furnishes teams and wagons to do the work, or is hired to haul sewer pipe for the construction of a sеwer and uses his own team and wagon for that purpose. In such cases we have held that the relation of employer and employe arises. Herron v. Coolsaet Bros, supra; Bеnson v. County of Marshall,
The mere fact that relator employed a man to assist him does nоt justify the contention that relator was an independent contractor. He was not a сontractor or builder who took jobs and supervised the work of the men he employed. Hе did the principal work himself with the aid of a helper. Our decisions emphasize the importаnce of the right of control as a test. Here the produce company had the right tо stop the work and discharge the relator at any time. As was said in State ex rel. V. & R. L. Co. v. District Court,
The decision of the commission is reversed with directions to award compensation. Relator will be allowed an attorney’s fee of $100.