Holmberg v. Amundson , 177 Minn. 55 ( 1929 )

¹ Reported in 224 N.W. 458, 225 N.W. 439. Certiorari to the industrial commission to review a denial of compensation.

The relator was injured while doing tin work on a house under construction by Gabriel Amundson. The latter was a general contractor but was building this house for himself. Naturally therefore he was giving the work close supervision and in fact was overseeing the work of relator at the time of the accident — the fall of a scaffold which resulted fatally to Mr. Amundson himself. That direction of relator's work is of course persuasive on the question whether Amundson so far had the right of control as to make relator his employe. The evidence would easily sustain a conclusion to that effect. But the burden was upon relator, and there is enough of reasonable inference to be drawn from the whole evidence so that we are unable to disturb the adverse finding by the industrial commission.

There is no direct proof of the actual agreement. But there is evidence not only that it was Mr. Amundson's custom to have the tin work on dwellings erected by him done by an independent contractor but also that relator was at the time of his injury such a contractor rather than an employe. His name did not appear on the Amundson payroll. After Amundson's death he had the tin work finished by others as though he had been so obligated by contract. A bill subsequently rendered, though otherwise explained by relator, on its face indicates that the job was done under contract for a lump sum for the labor, the materials going in at cost.

True, relator's testimony taken alone all favors the idea that he was a mere employe. But, as already indicated, there is evidence so reasonably supporting inferences to the contrary that the decision of the industrial commission cannot be disturbed.

Order affirmed.

ON APPLICATION FOR REHEARING. On May 17, 1929, the following opinion was filed: