Schlichting v. Radke , 67 S.D. 212 ( 1940 )

I am unable to concur in the majority opinion. The evidence in this case as to the controlling facts is so free from conflict that a question of law is presented as to the status of the plaintiff at the time of his injury. Plaintiff employed by defendant Radke to do general farm work had been so engaged for two or three weeks when he agreed to overhaul on the following Sunday his employer's tractor. Plaintiff had attended an "auto school" for about three weeks in 1921 when he was nineteen years of age, but had never followed the occupation of a skilled mechanic or been so employed. Defendant Radke, intending to use the tractor on Monday for threshing, employed his brother Herbert to work with plaintiff. The repairing of the tractor consisted in replacing piston rings and taking up the bearings. Schlichting and defendant's brother commenced to overhaul the tractor as agreed on Sunday morning. Defendant Radke gave no instructions either to plaintiff or to his brother, and did not supervise the details of the work. During the forenoon plaintiff sustained an injury by striking his back on the frame of the tractor, and the repair job was completed by the brother.

An employee, as defined in the Workmen's Compensation Act (§ 9490, Rev. Code 1919, SDC 64.0102), is "every person, including a minor, in the services of another under any contract of employment, express or implied." There are certain stated exceptions which are not here material. It is conceded that an independent contractor is not within the scope of the act. It would be difficult, if not impossible, to formulate a definite rule by which to determine when a person undertaking to do work for another is an independent contractor and when he is an employee, but there are many well recognized indicia of the status of an independent contractor.

"The commonly recognized tests of such a relationship are, although not necessarily concurrent or each in itself controlling: (1) The existence of a contract for the performance by a person of a certain piece or kind of work at a fixed price; (2) independent nature of his business or of his distinct calling; (3) his employment of assistants with the right to supervise their activities; (4) his obligation to furnish necessary tools, supplies, and materials; (5) his right to control the progress of the work, except as to final results; (6) the time for which the workman is employed; (7) the method of payment, whether by time or by job; (8) whether the work is part of the regular business of the employer." Mallinger v. Webster Oil Company, 211 Iowa 847, 234 N.W. 254, 257.

See also Murray's Case, 130 Me. 181, 154 A. 352, 75 A.L.R. 720, and Annotation.

This court has recognized that the principal consideration in determining whether a person employed to do certain work is an independent contractor or an employee is the control which is reserved by the employer. In Cockran v. Rice, 26 S.D. 393, 128 N.W. 583, 585, Ann. Cas. 1913B, 570, this court said: "`The test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent.' 26 Cyc. 1547. * * * A test of the relationship between the employer and the employee is the right of the employer under the contract to control the manner and continuance of the particular service and the final result."

Whether payment is by the job or the hour or the day is a circumstance to be considered, but is not determinative. Industrial Commission v. Hammond, 77 Colo. 414, 236 P. 1006; Rick v. Noble, 196 Minn. 185, 264 N.W. 685; Burchett v. Department of Labor Industries, 146 Wn. 85, 261 P. 802, 263 P. 746; Mallinger v. Webster City Oil Co., supra.

The fact that the employer engages another to assist in the work and the absence of the right of the worker to control, direct or supervise another employed on the work are facts to be considered in determining whether the worker was an independent contractor. Murray's Case, supra; Industrial Commission v. Hammond, supra; Warner v. Fullerton-Powell Hardwood Lumber Co.,231 Mich. 328, 204 N.W. 107; Western Paving Co. v. State Industrial Commission, 141 Okla. 140, 284 P. 304.

Plaintiff had been employed on the farm of defendant Radke to perform ordinary farm work. He was not a skilled mechanic, and the work plaintiff was doing when he was injured could have been done by anyone having ordinary mechanical ability. It is true that the employer did not direct the method or details of the work. However it is not the fact of actual interference or exercise of control by the employer, as indicated, which renders a person an employee rather than an independent contractor, but the existence of the right or the authority to control. Every person employed to work on the premises of another and for the other's benefit is presumed to be in the employment of the person whose work is being done. Simila v. Northwestern Improvement Co.,73 Wn. 285, 131 P. 831. The evidence does not affirmatively show that plaintiff was free from the control of his employer. In the light of all the facts in this case, the previous employment, the place of the work, the short length of time required to complete the job, the hiring by defendant Radke of the brother to assist with the work, and the fact that plaintiff did not undertake to do all the work and was not exercising an independent calling, the conclusion of the trial court that plaintiff was an employee was clearly warranted. Evidence suggesting the status of an independent contractor is meager. The only fact which tends to uphold the contention that plaintiff was an independent contractor was the basis of payment. The tendency of modern decisions is not to accept the mode of payment as decisive, but to look to the broader question whether the person is in fact independent or subject to the control of him for whom the work is done. 14 R.C.L. 74; Annotation: 20 A.L.R. 684, § 25. If it may be inferred from the evidence that plaintiff was to receive a lump sum for the work, such method of payment is not persuasive in view of the fact that plaintiff was to do the work in conjunction with another not employed or compensated by him.

SMITH, P.J., concurs in this dissent.