Burkhardt v. State

53 N.W.2d 394, 78 N.D. 818, 1952 N.D. LEXIS 80

• Court: North Dakota Supreme Court
• Decided: May 1, 1952
• Docket: File 7289
• Status: Published

Opinions

Grimson, J.

Rudolph Burkhardt died from injuries received in a fall from the roof of a barn which he was helping to construct on the farm of John Schmidt near Richardton, North Dakota. The plaintiff is his widow. It is claimed on her behalf that the deceased was at the time an employee of Yal Messer, an independent contractor, building the barn. Messer, however, had not complied with the North Dakota Workmen’s Compensaton Act. Instead of bringing suit against him for damages plaintiff elected to file a claim for an award of compensation under the Workmen’s Compensation Law, Title 65 NDRC 1943, Chap. 65-09. Hearings on said application were held by the Workmen’s Compensation Bureau under the Administrative Agencies Uniform Practice Act, Chapter 28-32 NDRC 1943. Its dismissal of the claim was appealed to and affirmed by the District Court. On appeal from that judgment of the District Court to the Supreme Court it was discovered that the notice of the hearing before the Bureau had not been served on interested parties as required by law. The case was, therefore, remanded to the District Court with directions to vacate the judgment entered and to remand the case to the North Dakota-Workmen’s Compensation Bureau for a hearing on the claim after due notice was served on all interested pai’ties as provided by law. See Burkhardt v. State, 77 ND 232, 42 NW2d 670.

The District Court carried out the mandate of this court and remanded tlie case to the North Dakota Workmen’s Compensation Burean. A hearing was duly had before the Bureau on the claim of the plaintiff after due notice to all interested parties. The Bureau thereafter came to the conclusion that Rudolph Burkhardt at the time of the injuries resulting in his death was an employee of John Schmidt; that John Schmidt was engaged in an agricultural pursuit and that Burkhardt’s employment at the time of the injury, resulting in his death, was casual. The Bureau dismissed the claim. The claimant duly appealed to the District Court asking for trial anew, alleging as error the finding of the Bureau that Rudolph Burkhardt was an employee of John Schmidt and that his employment at the time of his injury was casual or in an agricultural pursuit.

All of the proceedings had before the Workmen’s Compensation Bureau were certified to the District Court on the appeal. Sec 28-3215 NDRC 1943. The review of the District Court is upon that record and under the statute, Sec 28-3219 NDRC 1943, the District Court is “directed to affirm the decision of the agency unless it shall find that such decision or determination is not in accordance with law ... or that the findings of fact made by the agency are not supported by the evidence. . . .” The District Court affirmed the Bureau’s dismissal of the claim. An appeal to this court was thereupon taken by the plaintiff under Sec 65-1001 NDRC 1943, demanding a trial de novo and alleging error in failing to find that the defendant Messer was an independent contractor, setting forth eight specifications in support thereof and in failing to find that Rudolph Burkhardt was employed by Messer instead of Schmidt and in failing to grant the claim of the plaintiff.

It is claimed on the part of the plaintiff that Messer was an independent contractor and that Burkhardt was working for him in the building of Schmidt’s barn; that as such independent contractor Messer was subject to the provisions of the North Dakota Workmen’s Compensation Act, Chap 65-09 NDRC 1943, even if he had not complied with the provisions thereof; that Burkhardt died in the performance of his duties in the course of his employment and that Mrs. Burkhardt is entitled to an award of compensation. On behalf of the appellees it is claimed that Messer was employed by Schmidt as foreman for the building of the barn and that both Messer and Burkhardt were employees of Schmidt in casual employment or in agricultural service.

It becomes necessary, therefore, to first determine whether the conclusions of the Bureau, that Messer was not an independent contractor but that both he and Burkhardt were employees of Schmidt, are supported by the evidence and are in accordance with law.

The statute does not make any definition of the term “independent contractor.” The courts have applied various tests. Different factors have been cited and emphasized depending somewhat on the particular circumstances of each case. All the facts and circumstances of the particular case may be considered in making a determination of whether a workman is an employee or an independent contractor. Knuffke v. Bartholomew, 106 Neb 763, 184 NW 889; Lowe v. Chicago Lumber Company of Omaha, 135 Neb 735, 283 NW 841; 1 Schneider’s Workmen’s Compensation Law, 285.

“The most important test in determining whether a person employed to do certain work is an independent contractor or a mere servant is the control over the work which is reserved by the employer. Whether one is an independent contractor depends upon the extent to which he is, in fact, independent in performing the work. Broadly stated, if the contractor is under the control of the employer, he is a servant; if not under such control, he is an independent contractor.” 27 Am Jur, Independent Contractors, Sec 6, p 486.

This principle has been generally approved and applied. Mutual Life Insurance Co. of New York v. State of North Dakota, 71 ND 78, 298 NW 773, 138 ALR 1115, 71 CJ 449, 58 Am Jur 670; Angell v. White Eagle Oil & Refining Co. 169 Minn 183, 210 NW 1004; Pace v. Appanoose County, 184 Iowa 498, 168 NW 916; Schlichting v. Radke, 67 SD 212, 291 NW 585; McCarthy v. City of Murdo, 68 SD 12, 297 NW 790; Nonning et al. v. Carter et al. 185 Wis 384, 200 NW 652.

This court held in Bernardy v. Beals, 75 ND 377, 28 NW2d 374:

“One of the most important tests to be applied is the -right of the employer to control not merely the result but the manner in which the work is done and the methods used in its performance. Starkenberg v. North Dakota Workmen’s Comp. Bureau, 73 ND 234, 13 NW2d 395; Janneck v. Workmen’s Comp. Bureau, 67 ND 303, 272 NW 188; State ex rel. Woods v. Hughes Oil Co. 58 ND 581, 226 NW 586; Lilly v. Haynes Co-op. Coal Min. Co. 50 ND 465, 196 NW 556; Kronick v. McLean County, 52 ND 852, 204 NW 839.”

Another important factor and as an incident of the right of control is the right to hire and discharge workmen. Bernardy v. Beals, supra, and cases cited. A further indication to be considered in determining the relationship is the mode, method or basis of payment. Meredosia Levee & Drainage District v. Industrial Commission of Ill. 285 Ill 68, 120 NE 516. That, however, has been given less weight than some other factors. Bernardy v. Beals, supra; 71 CJ 471; Ryan v. Twin City Wholesale Grocery Co. 210 Minn 21, 297 NW 705; Finn v. Phillippi Brothers, 211 Minn 130, 300 NW 441. The fact that the work to be done is such as required special skill for its performance is a circumstance to be considered. Shannon v. Western Indemnity Co. (Tex Com App) 257 SW 522. The furnishing of tools, materials and supplies should be considered although the courts have held both ways as to the conclusiveness thereof. 71 CJ 467, 469.

Other tests which may be considered under the evidence of this case are the attitude and intention of the parties as determined from all the circumstances of the case. 58 Am Jur 670, Workmen’s Compensation, Sec 138 p 670, whether the work is a part of the regular business of the employer, Nallinger v. Webster City Oil Co. 211 Iowa, 847, 234 NW 254, whether the contract contemplates labor on the job or the completion of the job or some portion thereof. Industrial Commission v. Hammond, 77 Colo 414, 236 P 1006.

The evidence discloses that John Schmidt had retired from his farm and rented it to his son. His barn was destroyed by fire. He then contacted Val Messer who testified that his name was Valentine E. Messer. Messer was a carpenter and for at least three years had been engaged in erecting barns and other buildings in that neighborhood. His continuance in the work shows that he had the necessary skill for erecting buildings. That was his regular occupation. Schmidt asked him to build a certain kind of barn and gave him the size.' He says: “I didn’t make much of a deal. I just asked him to build the barn for me and he came out in the spring with . . . two other men. They built the foundation and later on he came out and I got the lumber and they started in with the help.” Messer testified: “He wanted me to put up a barn for him and he said, ‘Can you get help’ and I said, ‘Yes, there were some in town that went along with me and put up barns and they were paid by the hour. . . “Q.— Now to get this straight, Mr. Messer, it is a fact that Schmidt made a deal with you to have a barn built. Is that right ? Ans.— Yes.” Mr. Schmidt did not particularize how the barn should be built. Messer made all the plans in that regard and directed Schmidt what lumber to get. Schmidt furnished all the materials and the board and lodging for the men. Messer furnished the tools. Messer brought Burkhardt’ and another man, Heinle, along with him to build this barn. With their aid and with some help from farmers with whom Schmidt had exchanged work the barn was built. All the work was carried on under the control and direction of Messer. Even Schmidt and his son carried out Messer’s orders in the work they did on the building of the barn. Messer cut the lumber and told the men what to do and how to do it. He was in complete charge. He says: “I was responsible for the job. . . .” He carried on the work to the completion of the job except for the shingling of a part of one side of the roof which could not be done for lack of shingles. There was delay in getting the shingles. Messer says: “That was why we didn’t finish.”

This evidence discloses an agreement between Schmidt and Messer for the building of the barn with Messer in complete charge of that work. In Starkenberg v. North Dakota Workmen’s Compensation Bureau, 73 ND 234, 13 NW2d 395, this court held that: “One who contracts' to construct a building for another, in accord with a stipulated plan, without being subject to the latter’s superintendence, orders, or control in respect .of the details of the work; who has absolute control of the.work; may work such hours as he sees fit to work, may do the work himself or employ others to assist, and is to be paid a definite, stipulated sum when the building has been fully completed, is not an employee but is an independent contractor.”

That the payment was by the hour in the instant case and that Schmidt furnished some of the laborers who worked under Messer’s direction does not make any difference. r

An analogous situation is set forth in the case of McCarthy v. City of Murdo, 68 SD 12, 297 NW 790. There a plumber directed the progress of the work which he had undertaken to do for city and completed the work according to plans that he had made. While the work was in progress a city official was present but did not attempt to exercise any control over the plumber, who was assisted by two WPA workers furnished by city. The plumber furnished all equipment and materials and paid his helper wages for which he billed the city. The city could have terminated plumber’s employment if plumber could not perform work he had agreed to perform. The plumber submitted a bill on a per diem basis. It was held that the plumber was an “independent contractor” and not an “employee.”

In Kronick v. McLean County, 52 ND 852, 204 NW 839, one Aune contracted with McLean County to “ perform the duties of repairnig’ the court house and county jail.” He was paid seventy-five cents an hour. He hired Kronick who was paid sixty-five cents an hour. Aune had complete charge of the work under the supervision of the County Commissioners and County Auditor. It was held that the relationship of employer and employee did not exist between Kronick and the County. In Montain v. Fargo, 38 ND 432,166 NW 416, LRA1916C 600, a garbage collector was held an independent contractor although acting-under the supervision of the City Health Commissioner. It was there pointed out that a servant is one entirely under control of master as defined by Sec 6134 CL 1913 (Sec 34-0401 NDRC 1943) while by inference one not coming under that definition is an independent contractor. In Newman v. Sears, Roebuck & Co. 77 ND 466, 43 NW2d 411, a carpenter installing a folding-bed was held an independent contractor. In Janneck v. Workmen’s Compensation Bureau, 67 ND 303, 272 NW 188, a painter, Weddell, hired for a certain paint job was held an independent contractor.

On the employment of Burkhardt the evidence shows that Messer .not only kept the time of Barkhardt and Heinle whom he brought with him but that he determined how much to pay them. Both of these men were strangers to Schmidt. He never talked to them as to their employment or wages. He claims they were working for Messer. They worked entirely subject to Messer’s orders. Heinle testified that he had worked for Messer on .many jobs and had been usually paid by Messer direct. That he considered himself working for Messer on this job. In Dahl v. Wunderlich, 194 Minn 35, 259 NW 399, 401, it is held that there cannot be a change of masters without the knowledge and consent of the servant. Messer called for them in town, took them to the job and directed, not only the work but the hours worked each day.

On examination by Mr. Sperry, Messer testified:

“Q. Now Mr. Messer, isn’t it the truth that you made this deal with Mr. Schmidt to build this barn for him and that you got these men and told them about what they would be paid?

“A. Yes.

“Q. You took these men over there after making this deal with them to help you and you told them what to do while you were building the barn?

“A. That is right.

“Q. And you kept the time?

“A. Yes.”

Messer also determined the amount these men should he paid. He said:

“Q. Before you went there you told Mr. Schmidt what you were going to charge for your time and that of the men?

“A. Yes.

“Q. You told these men what they were going to get?

“A. We were doing that right along.”

Messer persuaded Schmidt to draw checks direct to Burkhardt and Heinle for the amount be directed. Schmidt objected to that but finally acquiesced in Messer’s request. There is some' testimony that they were paid weekly bnt Schmidt testified that he paid when the job was done. That was after Bnrkhardt’s death. In either case the payment was controlled by Messer.

On this matter of wages and payment the testimony shows that Commissioner Fenelon asked Messer:

“Q. While you were working at the Schmidt place did you put in the men’s time, say at sixty cents per hour, and then only pay the men fifty cents an hour? Did you have any arrange ment like that?

“A. No.

“Q. In other words, you never made any profit on the men?

“A. That is the reason why I had the owner pay them. I didn’t want the men to think I was making money off them. There was a fellow here in town that did get ten cents an hour for each fellow and he got into trouble. Nobody can say that I got more than the ones that worked for me.”

“Q. Did you furnish tools for these men?

“A. Yes.

“Q. Did you charge them anything for the use of tools'?

“A. I didn’t charge the men anything but I got fifteen cents an hour more than they got.

“Q. Was this for the use of the tools?

“A. Yes.”

On cross examination by Sperry, Messer testified:

“Q. Then your fifteen cents an hour that you were getting-above what the others got was in what you charged for the tools?

“A. I owned the tools.

“Q. It was because you were boss of the job and you were responsible for the supervision of the work?

A. “Yes.

“Q. You did not want the Workmen’s Compensation Bureau to know you were a contractor?

“A. I never was a contractor.

“Q. You. were afraid that if you paid these men direct they would considér you a contractor?

“A. Yes.”

Another indication of why the payment was made in this manner is found in the testimony of Frank Schmidt, who téstified that during -the work there was some conversation with Messer about what would happen if anybody got hurt. “I said, ‘Well these men are insured for that, aren’t they?’ He says: ‘No, they have no insurance. They did not want anything taken out of their pay, therefore, I am not taking insurance.’ ” Heinle somewhat contradicts that. He testified: “Q. Did you think he had insurance? A. Yes. Q. You thought he had insurance? A. Yes.”

' On the matter of who had the right to discharge an employee on the job the evidence shows that Schmidt denies any such right. He testified:

“Q. If Mr. Burkhardt didn’t do the work right whose business was it to fire him ?

“A. I had nothing to say.

“Q. That would be Messer’s job?

“A. He was working for him.”

Messer tried to avoid it. He says:

“Q. You could fire these men?

“A. No.

“Q. You were bossing them and if they didn’t do the work you could fire them?

■ “A. I don’t think so. They weren’t working for me. They were working for someone else.”

Commissioner Fenelon asked Messer:

“Q. Did you have the supervision of the work?

“A. I was responsible for the job and they left it up to me.” Mr. Sperry pursued this further:

“Q. Did you feel responsible for the way these men did the job, since you took them over there? ■ •

“A. I felt responsible for them?

“Q. Yes, for the way they did the work?

“A. No answer.

“Q. Let me ask you another question before you answer that. Say you took the job of building the barn, were responsible for it and for the work the men did and you say Mr. Burkhardt wasn’t doing the work right, was breaking up the lumber and not putting the sidings right — would you fire him?

“A. Not fire him but tell him, he didn’t do it that way.

• “Q. But if he still continued to do it wrong, would you fire him?

“A. He wasn’t that kind of a man.

“Q. If'he was?

“A. I would talk to Mr. Schmidt before I fired him.

“Q. Why would you talk to Mr. Schmidt? Suppose you did talk to Schmidt and told him this man was hopeless and he told you to keep him and you were responsible for the way the barn turned out?

"A. Not in that case.

“Q. You would have the right to fire him?

“A. Yes, I guess so.”

• Taking those answers, together with the facts and circumstances of the case, the conclusion is that Messer did have the right to discharge an employee. .

From a consideration of all the evidence it appears that Messer was engaged in a trade or occupation of building barns. He took the job of building a certain kind of barn for Schmidt. He did all the planning. He exercised complete control over the mam ner and the method of building said barn. Messer was responsible for the job in all respects. Messer brought Burkhardt and another man on the job. They worked under Messer’s supervision. Burkhardt was hired and in effect paid by Messer. Messer had the right to discharge a workman.

The Bureau made no findings whatsoever with respect to any of the facts just stated, although they are without any substantial dispute in. the record. Its only finding is the ultimate conclusion that “Burkhardt, at the time of his injury resulting in his death, was an employee of John Schmidt.” There are in the record no findings of fact upon which such a conclusion could .rest, nor is there in the record any intimation as to the basis upon which the Bureau founded this conclusion. Our view is that the facts are clearly established and that they will permit no conclusion other than that Burkhardt was an employee of Messer, an independent contractor.

Chapter 65-0102 NDRC 1943 provides that casual employment and agricultural service are not covered by the Workmen’s Compensation Act. The question arises whether the building of. a barn is agricultural service or casual employment under the circumstances of this case. We have held that Burkhardt was an employee of Messer. Messer’s business was that of erecting buildings. He was building a barn for Schmidt. That was not a casual employment but in the regular course of his business. Even if that employment was on. a farm that does not make those engaged solely in that work farm laborers. The whole character of the employment shows that Burkhardt was not employed to perform ordinary farm work. He was a carpenter employed by a builder whose business it was to erect barns and other buildings. In Lowe v. North Dakota Workmen’s Compensation Bureau, 66 ND 246, 264 NW 837, 107 ALR 973, this court in an opinion by Judge Burr said that a carpenter building a granary was not engaged in agriculture. That applies also to the building, of a barn. Burkhardt’s employment was neither casual nor agricultural. Oliver v. Ernst, 148 Nebr 465, 27 NW2d 622; Peterson v. Farmers State Bank of Eyota, 180 Minn 40, 230 NW 124.

A consideration of all the facts and' circumstances shown in the testimony of the parties, lead's to the conclusion that the evidence does not support the findings and conclusions of the Bureau. On the contrary it supports the contention of the plaintiff that Rudolph Burkhardt was in the employ of Yal Messer, an independent contractor, and not engaged in either casual or an agricultural occupation. His widow is, therefore, entitled to an award of compensation because of the fatal injury to her husband in the course of his employment.

No findings were made by the Bureau or the District Court as to the average weekly wage of Rudolph Burkhardt. There is, however, in the record sufficient evidence upon which such a finding can be made. That finding must be made by the District Court. In accordance with Sec. 65-1002 NDRC 1943, the District Court shall fix the claimant’s compensation within the limits prescribed by law. From the date of Rudolph Burkhardt’s death, June 9, 1944, to July 1, 1945 the statute fixed the rate of such compensation for a widow at 35 per cent of the average weekly wage of the deceased not exceeding $30.00 nor less than $10.00 until she died or remarried. See Sec. 65-0517 NDRC 1943. From July 1, 1945 to July 1, 1949 that rate is fixed at 35 per cent of that weekly wage not exceeding $35.00 nor less than $25.00. See See. 65-0517 as amended by Sec. 6, Chapter 337 S.L. 1945. Then from July 1, 1949, the rate is 45 per cent of that wage not exceeding $35.00 nor less than $25.00. See. 65-0517 1949 Supp.

The judgment of the District Court is reversed and the case is remanded to the District Court with directions to find the average weekly wage of the deceased, fix the amount of compensation and to render judgment for plaintiff in ■ accordance herewith.

Morris, C.J., and Burke and Sathre, JJ., concur.