211 N.W. 327 | Minn. | 1926
The sole question is whether under the act, H.J. Rouse, accidentally killed in a gravel pit, was an employe of the town of Bird Island or an independent contractor. Some time previous to December, 1924, the town board determined to gravel 2 1/2 miles of a town road. An agreement with the owner of a gravel pit was made for the purchase of gravel. A pit boss and checker were employed, and word was passed thai anyone could haul out gravel at certain *368 rates per load of 1 1/2 cubic yards. For each load so hauled the checker issued a ticket which on presentation the board paid. Rouse and others hauled under this arrangement in December, 1924, and January, 1925. On January 6th the town board concluded that the town should no longer furnish the dynamite required to loosen the gravel; but, on the haulers agreeing that the cost of the dynamite used be deducted from the amount of the price per load hauled, the board continued to provide the dynamite, and likewise to pay the checker and pit boss, but told the men they had to select the latter and must assume the risks incident to the work, especially since it appeared dangerous to the town officers to undermine the frozen ground in loading.
On January 13th, while Rouse was engaged in loading, a large block of the frozen undermined bank caved in, fell upon and crushed him so that he died therefrom that night. The referee held Rouse to be an employe of the town. A majority of the Industrial Commission concluded he was an independent contractor. In so doing reliance seems to have been placed on Arterburn v. County of Redwood,
Had the town paid by the day instead of by the load the relation indisputably would have been that of employer and employe. The fact that the men provided their own team, wagon and shovel, is of no significance. Herron v. Coolsaet Bros.
The Workmen's Compensation Act is a remedial statute to be liberally construed so as to cover the men intended to be brought within its protection. To that end it is provided in G.S. 1923, § 4290, that no one shall be deemed a contractor or subcontractor "who does what is commonly known as `piece work' or in any way where the system of employment used merely provides a method of fixing the workman's wages." And in § 4326, subd. d, an employer is defined to mean "every person not excluded by section 8, who employs another to perform a service for hire and to whom the `employer' directly pays wages, and shall include any * * * town," etc. So far as these provisions affect the common law rule for determining whether the relation of employe or of independent contractor exists they must be given effect. It is readily seen that where the Workmen's Compensation Act is not applicable assumption of risk and contributory negligence are of prime importance in controversies arising out of injuries received in the performance of some work. The decisions treating the question when a person is an employe and when an independent contractor in a common law action are annotated extensively in Chicago R.I.
P. Ry. Co. v. Bennett,
Some claim is made that subsequent to January 6, 1925, the men ceased to have the status occupied prior thereto. We think what the town board then did worked no change. The dynamite used merely affected the amount of the wages. That the men were *370 allowed to select the pit boss is of no significance, for the town still continued to pay for his services. That the town board told the men that they must assume the risk can have no legal consequence, it still paid them directly the amounts earned. An employer may not by a declaration of that sort transfer the risk to the employe. The statute provides the only way in which it may be done. G.S. 1923, §§ 4271, 4272.
The findings and decision are vacated and cause remanded to the Industrial Commission for an award in conformity to this opinion, with $100 attorneys' fees to relators on this appeal.
Reversed and remanded.