Myers v. Villard Creamery Co. , 189 Minn. 244 ( 1933 )

Ordinarily, one who operates a blacksmith shop, typewriter repair shop, electric shop, plumbing shop, paint shop, and similar places of business is regarded as a business man or an artificer, operating his own business as an independent contractor, and the relation of employer and employe which arises out of contract does not result from engaging him to do a particular piece of work. Of course almost any man may step aside from his usual occupation to do work for another under such circumstances as would mean that he was an employe. Any persons operating such shops as above mentioned may of course do this. Myers may have worked for the creamery on other occasions under circumstances wherein he was an employe, but that does not control in this particular engagement. Each engagement was a separate contract.

Had Mr. Myers suffered his accident while constructing the base in his shop as a blacksmith, it would seem that no one could successfully assert that he was an employe. But when Myers went to the creamery on the day in question, he was asked to install a washer and put in a rivet. He undertook to do this. It is claimed that in doing this work he was under the control of Peterson, as the representative of the creamery, and hence that he was an employe.

Myers did testify that in doing this work he was under the direction and control of Peterson. The statement of control, however, was a mere conclusion. He says Peterson told him what to do. Peterson also testified that he directed Myers what to do, and he himself exercised his own judgment as to what work needed to be done about the plant. In short, Peterson wanted the vibration removed from this apparatus. He knew what was necessary. He knew that a rivet and a washer should be installed; and, as we construe the record, he, while in control of the plant and in charge of what was to be done therein, directed Myers to install a rivet and a washer. How they were to be put in rested with and in the judgment of Myers. He was not under the control of Peterson as to the movements, manner, and means necessary to reach the desired result, which obviously was the only thing in which the creamery was interested.

It is true that Peterson decided and directed what he wanted done, but he did not assume to say to Myers how he should do the installation, nor did he designate the tools to be used. That was in fact left to the judgment of Mr. Myers. He did not presume to control the manner of doing the work. Peterson and the creamery simply were not interested therein; but if they were, they contented themselves by leaving the method and manner of doing the work to Myers, who knew how. The undisputed evidence is that Peterson asked Myers to do this work because he himself could not do it. It is not every man who can make such repairs on an electric motor as is here involved. It would be an anomalous situation for Peterson to direct how a job should be done when he himself could not do it. It might just as well have been a clock needing repair before it would run, or it is analogous to an automobile mechanic who has been called out in the country to repair a broken-down car. The control and direction involved relate to the necessity for and propriety of acting — not the manner, means, or method of doing the work.

As we construe the record, Myers was rendering the creamery a service in the same line in which he operates a shop. The apparatus could not be taken down and removed to his shop conveniently and economically, so Myers walked across the street, presumably with his tools, and there did the work in the capacity of an independent contractor and not as an employe. The fact that he was paid by the hour does not control. Going from his shop into the creamery and there doing the work cannot under the circumstances change his status of a contractor to an employe of the customer desiring his service.

The respondent, in my judgment, belonged to that class of independent job workers such as general blacksmiths, job carpenters, plumbers, electric fixture repair men, and many others who are engaged in independent job work who may employ others to assist them and who usually work at their particular vocation either alone or with such employes as the extent of their business may require. While they are engaged in their particular line of activity they are not the employes of those whom they serve, but are independent contractors. The fact that they themselves perform work in accomplishing the undertakings that they assume does not make them employes of the persons whom they serve and therefore entitled to the benefits of the workmen's compensation law.

See also Holmberg v. Amundson, 177 Minn. 55, 224 N.W. 458,225 N.W. 439; Angell v. White Eagle O. R. Co. 169 Minn. 183,210 N.W. 1004; Schoewe v. Winona P. G. Co. 155 Minn. 4,191 N.W. 1009.

The question before us is one of law. There is no dispute in the facts. The opinion should reflect our conclusion of law rather than pass the responsibility to the industrial commission as a fact-finding tribunal.