Kronick v. McLean County

204 N.W. 839, 52 N.D. 852, 1925 N.D. LEXIS 152

• Court: North Dakota Supreme Court
• Decided: June 16, 1925
• Status: Published

Opinion

Bikdzell, J.

This action was brought against the defendant, the county of McLean, as an employer under chapter 162 of tbe Laws of 1919, tbe Workmen’s Compensation Act. Tbe plaintiff complains on account of injuries received by falling from tbe roof of tbe courthouse while painting or staining shingles and predicates tbe liability of tbe county upon its failure to comply with tbe law by contributing to tbe Workmen’s Compensation Fund. At tbe conclusion of tbe testimony offered for tbe plaintiff, tbe trial court granted the defendant’s motion to dismiss tbe action. Tbe appeal is from tbe judgment.

In June, 1923, tbe defendant county entered into a written contract with one Aune under which the latter undertook to “perform tbe duties of repairing” tbe courthouse and tbe county jail. Tbe contract enumerated tbe particulars in which be was to repair tbe building and the compensation that be was to receive as follows:

“This Agreement, Made this 5th day of June 1923 by and between county of McLean and Ole B. Aune of Wilton, N. D., Party of tbe Second Part.

Witnesseth, That the party of tbe second part hereby agrees to and with tbe party of tbe first part, for tbe consideration hereinafter named to well and faithfully perform the duties of repairing as hereinafter enumerated, in a workmanlike manner and ■ according to tbe usual course of repair, and to use due care ’and prudence in protecting property and persons while so engaged, on tbe property of tbe party of tbe First part situated on Block Eight of tbe Riverview Addition to tbe city of Washburn, McLean county, North Dakota, known as the courthouse building and tbe county jail building.

And tbe said party of the second part further agrees to perform tbe following duties to-wit:

1. Painting and staining; and repair; repair and stain all shingles on the buildings named above; replace all broken and rotten shingles; securely nail all loose or warped shingles. Repair and paint all cornices on the buildings named above, replacing parts necessary. Paint and repair all windows, replacing broken panes and nailing loose casings and frames. Also to clean all windows on tbe outside.

2. To act under the general supervision of the county commissioners and the county auditor and to perform additional repair work as either, of these parties see fit.

3. Tbe said party of the second part further agrees to perform the 'above service at the rate of $.75 per hour.

4. The said party of the first part agrees to make payment in full on completion of the work as named above.

In Testimony Whereof, Both parties have hereunto set their hands and seals the'day and year hereinbefore written.”

To do the work stipulated for, Aune hired seven men, including the plaintiff, each of them to receive sixty-five cents per hour. Directions for doing the work upon the courthouse were given to Aune by the county auditor. On one or two occasions the plaintiff overheard 'the county auditor giving Aune directions, but any directions given to the plaintiff came from Aune.

The pivotal question in the case is whether or not the plaintiff was an employee of the county within the Workmen’s Compensation Act. It seems to us to be clear that the relationship of employer and employee never came into existence between the defendant and the plaintiff. From the terms of the contract existing between Aune and the county, we think it is apparent that the county looked to Aune alone for the proper doing of the work and that it left him free to do the entire work himself or to employ others to assist him. The option was with Aune and not the county. If he hired persons to assist in the work that he had agreed to do, they would clearly be his employees and not the county’s. While the work was to be done under the supervision of the county commissioners and the county 'auditor, this does not mean that they were to direct the various persons employed by Aune. It does not mean that these officials had reserved a right to control the details of the work, but, rather, that they had a right to supervise and inspect to the end that the job be done in a workmanlike manner. It was Aune’s job. If the contract were in the least ambiguous in defining the- relation between Aune and the county, the record makes it clear that the county relied upon Aune alone and that it reserved no right of control over the men that might be hired by him.

Under the'Workmen’s Compensation Act the relation of employer and employee must exist in order to make its provisions applicable. In § 2 thereof “employee” is defined as meaning “every person engaged in a hazardous employment under any appointment, or contract of hire, or apprenticeship express or implied, oral or written,” and the liability sought to be enforced in this action is the liability of an employer who has failed to comply with §§ 6 and 7. The act declares such non-complying employers to be “liable to their employees for damages suffered by reason of injuries sustained in the course of employment.” (§ 11.) It prescribes no special or peculiar test for determining when the relationship shall be held to exist. Consequently, it must be determined as in other cases. Indeed, § 2 of the Act seems to base the relationship upon contract. There was no contractual relationship 'between .the plaintiff and the defendant. This is a clearer ease than Arterburn v. Redwood County, 151 Minn. 338, 191 N. W. 924, in which the Minnesota Supreme Court held that the defendant was not liable. ' Our statute contains no provision similar to that applied in the case of Oomerford’s Case, 229 Mass. 573, 118 N. E. 900, relied upon by the appellant. The statute before the court in that case gave protection to employees of independent contractors in certain cases.

Since the remaining questions raised on the appeal cannot affect the result, being only material in the event of a new trial, they need not be considered.

Judgment affirmed.

ChRistiaNSON, Ch. J., and Nuessle, Burke, and Johnsok, JJ., concur.