Wangen v. City of Fountain , 1977 Minn. LEXIS 1540 ( 1977 )

MacLAUGHLIN, Justice.

Relators seek review of a decision of the Worker’s Compensation Court of Appeals awarding respondent benefits for temporary total and permanent partial disability. The only issue raised on appeal is whether respondent at the time of his accident was an employee of the relator city of Fountain or an independent contractor. Because we conclude that respondent was an independent contractor, we reverse.

Respondent, Donald Wangen, is the proprietor and sole employee of Don’s Plumbing and Heating in Lanesboro, Minnesota. As a part of this business he owns his warehouse, truck, and inventory. He uses his own tools and bills his customers on invoices for Don’s Plumbing and Heating. He lists his business in the telephone directory under “Plumbing Contractors,” and a sign in front of his place of business has similar identification.

Sometime in 1974, Ed Meyers, a plumber in Fountain, informed the city council of Fountain that he no longer wished to do some of the city’s work. In June 1974, one of the councilmen called respondent to tell him there were some water system leaks in need of repair and requested that respondent do the work. Respondent initially indicated that he had other work to do but that he would do the repairs when he could. On July 4, 1974, the Fountain city clerk encountered respondent and asked when he would be available. Respondent said he would do the work as soon as he could. Respondent performed four jobs for the city in July. He spent a total of 16V4 hours on these jobs and billed the city $8 per hour, which included the time taken for the one-way trip from his premises to the job site. He also billed the city for the use of his own materials. He did not submit a written bid or estimate before making the repairs. He was paid the full amount billed, without any deduction for taxes.

Respondent did this work with the help of Gordon Rogstad, a part-time city maintenance man,¹ and Warren Vitse, a contractor and backhoe operator. Rogstad’s duties were to inspect the water system for problems and report those problems to the city council. At that point a person from the council would contact someone to do the repairs. Rogstad’s duties thereafter were to be at the repair site at the time the work was done to show the repairmen the location of the problem, turn the water on and off before and after the repair was made, and contact other utilities if something had to be located or moved. He sometimes assisted with shoveling or pulling pipe. Rog-stad had no special knowledge of plumbing repairs.

On August 19, 1974, after a request from the city, respondent attempted to perform a fifth job, the replacement of a water main under some railroad tracks. While he was in an excavation, the bank collapsed, injuring his ankle.

The compensation judge held that respondent was an independent contractor and denied compensation. Among other things, the compensation judge observed as follows:

“Mr. Wangen’s work for the City was just another job in his plumbing business. He billed the City as he would any other customer. He even charges a sales tax on the billing in July, 1974. Some of the parts came from his own stock. For his regular customers in Lanesboro he charges $6.00 per hour. The only difference for the City of Fountain was that he charged $8.00 per hour. As in his business, he charged his hourly rate from the time he left the shop until he reached the job. It would be highly unusual for an employee to charge his employer $8.00 an hour to get to work. Payment for the jobs for the City were made by check and deposited in his business account.”

The compensation court reversed with a short memorandum as follows:

“The tests have been stated in numerous cases. Guhlke v. Roberts Truck Lines, Inc., 268 Minn. 141, 128 N.W.2d 324, 23 W.C.D. 175. As we have previously stated, regardless of the easiness of stating the tests, the area is one of jungle and the cases are irreconcilable. And in the instant case, there are factors in favor of both sides. However, we believe that there is probably a little more basis in the instant case for holding the petitioner an employee than an independent contractor. The key factors in his favor, on this job, we believe are: 1) he never really agreed to accomplish a specific job at an agreed price; 2) he was doing a repair job at an hourly rate, and working in conjunction with the Village man, Rogstad, who, we believe, could have told him what to do and discharged him at any time; 3) he apparently charged no profit for the materials and some of these materials the City would have been expected to secure if it had had an account with the supplier.”

This court has frequently stated that the following factors are to be considered in determining the existence of an employment relationship: (1) The right to control the means and manner of performance; (2) the mode of payment; (3) the furnishings of material or tools; (4) the control of the premises where the work is done; and (5) the right of the employer to discharge. Duetsch v. E. L. Murphy Trucking Co., Minn., 239 N.W.2d 462 (1976); Guhlke v. Roberts Truck Lines, 268 Minn. 141, 128 N.W.2d 324 (1964). The most important of these factors is the right to control the means and manner of performance, Duetsch v. E. L. Murphy Trucking Co. supra.

This court does not lightly overturn the findings of the compensation court. See, e. g., Zappa v. Charles Manufacturing Co., 260 Minn. 217, 109 N.W.2d 420 (1961). However, we feel compelled to do so in this case. It is undisputed that respondent operates his own business, and the city engaged his services in the same manner as any customer would. Respondent was free to do the work when he pleased and in any manner he saw fit. Rogstad did little more than point out the location of the leaks. Although it is the right to control the details of the work rather than the actual exercise of that right that determines employment, we see no basis for an inference that Rogstad was in a position to supervise the details of the work. Respondent is a skilled artisan, familiar with plumbing; Rogstad is not. Fahey v. Terp, 235 Minn. 432, 51 N.W.2d 273 (1952).

Prior cases of this court have recognized that in some circumstances a skilled artisan can be an employee although the employer exercises no supervision over the details of the work, Hammes v. Suk, 291 Minn. 233, 190 N.W.2d 478 (1971); Christopherson v. Security State Bank of Oklee, 256 Minn. 191, 97 N.W.2d 649 (1959). These cases should be narrowly confined to their facts. Where, as here, a skilled artisan holds himself out to the public as an independent businessman willing to work for anyone and performs a job within the scope of his expertise, independent of any detailed supervision, only in extraordinary circumstances can he be considered an employee.² We will not attempt to define what extraordinary circumstances will create an employment relationship in such a case, but we do not find them present here.

There is no doubt that the Worker’s Compensation Act should be liberally construed. However, there must be limitations on the findings of an employee-employer relationship in cases in which the facts will not support such a relationship. It is interesting to speculate as to the conclusion that would have been reached in this case had the respondent sued the city of Fountain for damages based upon negligence of the city, with the city defending on the ground that respondent was an employee and, therefore, precluded from bringing such a negligence action. It seems clear that such a defense would have encountered severe difficulties.

We have concluded that liability for a worker’s compensation claim under the circumstances of this case was never anticipated or intended by the legislature. The five factors mentioned earlier in this opinion are meant to be nothing more than an articulation of what common sense indicates. If not so used, there will be nothing left of the dichotomy between an employee who is entitled to benefits of the act and an independent contractor who is not.

Reversed.

1 . Rogstad received a base salary of $200 per month from the city of Fountain.

2 . 1A Larson, Workmen’s Compensation Law, § 44.20, states, in part, as follows: “ * * * An owner, who wants to get work done without becoming an employer, is entitled to as much control of the details of the work as is necessary to insure that he gets the end result from the contractor that he bargained for. In other words, there may be a control of the quality or description of the work itself, as distinguished from control of the person doing it, without going beyond the independent contractor relation.”