Wass v. Bracker Construction Co. , 185 Minn. 70 ( 1931 )

Certainly the findings of the industrial commission to the effect that decedent was an independent contractor cannot be disturbed upon the theory that they are without support in the evidence or that reasonable minds might not reach the same result. It seems that we have held that the determination of the right of control is a matter of fact, or at least we have so treated it. Bosel v. Henderson Holding Co. 167 Minn. 72, 208 N.W. 421. The facts however are practically undisputed, and it may be that the conclusion to be drawn therefrom is one of law; and from that standpoint I express my views.

Decedent in the solicitation of work used a business card as follows:

"Carl J. Wass "Specialize in cleaning "and tuck pointing "No Destructive 3317 43rd Ave. So.

"Chemicals used. Minneapolis, Minn."

He specialized in "cleaning" and tuck pointing. "Cleaning" what? The record shows that he cleaned brick work and windows. I take it that when buildings are completed and the bricks in the wall or the windows in the completed building are daubed with paint and dirt or other substances, this man's occupation was that of "cleaning" such soiled bricks and windows. I take it that "tuck pointing" is a kindred work.

In the instant case the contractor let to Mr. Wass the contract to clean the bricks in the Patrick Henry school building, and paid him the lump sum of $325. After receiving bids, the contract to clean the windows in this same school building was let to Mr. Wass at the agreed price of $125. All the contractor was entitled to under the contract was results. Mr. Wass had the right to use such material and ingredients as best suited him. The contractor could not dictate or direct what cleaning powder or mixture should be used or how long it should dry before being removed.

I am of the opinion that Mr. Wass' work involved skill, technique, and even an element of professionalism. The contractor reserved no express right of control. I see no grounds or circumstances from which it may be said that an inference may be drawn that he had the right of control. I recognize it is the right of control and not the failure to exercise such right that is important. But the contractor gave no orders. Defendant did not assume to direct when and where the work was to commence. Wass supervised his own work. He had no boss. He chose his own hours. The contractor had no right to stop his work before it was finished. Mr. Wass had been engaged in his special line of work for many years and indeed had frequently worked for this particular contractor over a period of eight or ten years. He was never on the payroll. All his work was by the job and in line with his special work and usually on large buildings.

Three of these jobs were exclusively window cleaning — the contractor did not always have to clean the windows. Mr. Wass employed his own help when needed.

The superintendent of construction representing the contractor testified that it was his duty to see that the work about the building was coordinated with other work being done. This is referred to in the opinion as the basis for the holding that the right of control existed by inference. But the superintendent never said a word to Mr. Wass about his work. Indeed, the superintendent stated that besides Mr. Wass there were, at the time of the accident and while Mr. Wass was engaged in his work, electricians, carpenters, and common laborers engaged in and about the building. The superintendent testified in referring to these workers: "I did not have charge over these people, you understand." Mr. Wass' work required that he follow the painters. Their work undoubtedly in a large measure made Mr. Wass' work necessary. The substance of his contract required that he should be the last man on the work, and the mere fact that the superintendent might have the right to insist that Mr. Wass' work be done after the painters had finished and not before has nothing to do with the element of control as to how the work should be performed. That relates merely to the element of time when the building is ready for the work.

As I read the opinion the controlling element seems to be the alleged menial character of Mr. Wass' work. But it does not seem to me that this work was in fact menial. Menial servants are those "who live within the master's walls." Menial services would seemingly be the services of such servants or at least services of the character that such servants usually perform. Possibly the cleaning of such windows as falls to such servants would be menial; yet the work in itself is not degrading, abject, or necessarily of any more humble rank than the work of many other employments. To undertake to wash windows at a cost of $125 in a large school building or to clean the bricks in a building like the St. Cloud Veterans Hospital, as decedent did, to my mind involves an undertaking not embraced in the term "menial." I think Mr. Wass had a respectable business.

Mr. Wass was apparently ambitious, and rightfully so. His efforts were commendable. As I view the record, he was in business for himself. There is no claim that the contract was a subterfuge to destroy the responsibility of an employer or to take away the rights of an employe. Each party acted in good faith and as he wished. It was his right. Mr. Wass had so conducted his business for years. This method of operation was his choice. His long continuation of the method is persuasive that it must have satisfied him that it was better than working as an employe. I consider it unfair to an employer to have the worker an independent contractor while he prospers but an employe when adversity comes.

I cannot follow the argument that there is a presumption that the worker was an employe. That relation rests on contract. There can be no presumption as to what the contract was. The burden is upon the petitioner to prove the terms of the contract in order to support her claim. I am of the opinion that Mr. Wass was an independent contractor and that the decision of the industrial commission should be affirmed. Schoewe v. Winona P. G. Co. 155 Minn. 4, 191 N.W. 1009; Ledoux v. Joncas, 163 Minn. 498, 204 N.W. 635; Moore v. Kileen Gillis, 171 Minn. 15, 213 N.W. 49; Stucky v. Independent Sch. Dist. 175 Minn. 547, 221 N.W. 911; Holmberg v. Amundson,177 Minn. 55, 224 N.W. 458, 225 N.W. 439; Zarns v. Swanville S. S. Assn. 177 Minn. 462, 225 N.W. 448.

I thought we had heretofore established quite a definite rule by which to determine whether one doing work is an employe or an independent contractor. Herron v. Coolsaet Bros. 158 Minn. 522,198 N.W. 134; Bosel v. Henderson Holding Co. 167 Minn. 72,208 N.W. 421; Angell v. White Eagle O. R. Co. 169 Minn. 183,210 N.W. 1004. The foregoing opinion now establishes a new or additional way or method to distinguish between an employe and an independent contractor, to-wit: meniality in services involved. In other words, the new rule is the character of the services, while the old one involved the right of control. I regard the result as illogical, unsupported by principle, and one which will be confusing in practice.

If the question is determined by the character of the services, i. e. their meniality, I consider it one of fact, and the conclusion of the industrial commission, under the rule, should not be disturbed by us. Walker v. Minnesota Steel Co.167 Minn. 475, 209 N.W. 635.