Bernardy v. Beals
| Decision Date | 01 July 1947 |
| Docket Number | 7047. |
| Citation | 28 N.W.2d 374,75 N.D. 377 |
| Parties | BERNARDY v. BEALS. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. One of the most important tests to be applied in determining whether the relationship of employer and employee exists is whether the person for whom the work is done has the right to control not merely the result, but the manner in which the work is done and the methods used in its performance.
2. The existence of the right of control rather than the actual exercise of the right furnishes the criterion to be considered in determining whether the relationship is that of independent contractor or employer and employee.
3. Factors other than the right of control may be considered in determining whether the relationship is one of employee or independent contractor. Such factors include the furnishing of tools, the control of the premises where the work is done and mode of payment, although the latter may sometimes be given less weight than other factors.
Nels G. Johnson, Atty. Gen., P. B. Garberg, Asst Atty. Gen., and Harry Lashkowitz, of Fargo, for appellant.
Burnett Bergesen, Haakenstad & Conmy, of Fargo, for respondent.
This is an appeal from a judgment of the district court reversing a decision of the Workmen's Compensation Bureau whereby the Bureau made an award in favor of Otto C. Bernardy as an injured employee, against A. P. Beals, an uninsured employer pursuant to the provisions of Ch. 6509, R.C.N.D.1943.
As a basis for the reversal of the decision of the Bureau, the district court found that the Bureau's determination that the claimant was an employee of Beals was contrary to the evidence and the law applicable thereto, and that the findings of fact of the Bureau are not supported by the evidence and that the conclusions and decisions of the Bureau are not supported by the findings of fact. The court directed merited criticism at the Bureau for lack of compliance with the provisions of the Administrative Agencies Practice Act (Ch. 28-32, R.C.N.D.1943) in its failure to 'make and state concisely and explicitly its findings of fact and its separate conclusions of law, and the decision of the agency based upon such findings and conclusions' as required by the Act. However, the Bureau made brief findings of ultimate fact essential to its decision but made no separate conclusions of law. A transcript of the testimony and the files are before us and are sufficient to show the facts upon which the Bureau made its decision. The procedural defects although censurable are not jurisdictional. Goodacre v. Panagopoulos, 72 App.D.C. 25, 110 F.2d 716; Hurwitz v. Hurwitz, 78 U.S. App.D.C. 66, 136 F.2d 796, 148 A.L.R. 226. The case is here for trial de novo. Our regard for the expedition of justice prompts us to go directly to the merits.
The findings of fact upon which the Bureau based its decision show that the claimant was injured on January 2, 1945; that the injury sustained was an amputation of the first finger of the right hand and a laceration of the inner aspect of the second finger; that at the time of the injury the employer of the claimant, A. P. Beals, had contributed nothing to the Workmen's Compensation Fund for insurance for employees covering the period in which the claimant was injured; that the employer was engaged in a hazardous occupation as defined by law on the date the injury occurred and was liable for personal injuries sustained by employees in the course of employment; that the claimant's injury was sustained in the course of employment and was not purposely self-inflicted nor caused by plaintiff's willful intention to injure another or his voluntary intoxication. The findings further show the extent of disability and the time for which it endured, loss of wages and medical expense incurred. On the basis of these facts, the Bureau made an award of $1,479.82 in favor of the claimant and against the employer.
The evidence shows that the claimant was injured while cutting meat with a power saw in the employer's storage locker establishment. He claims he was an employee of Beals. Beals claims that he was an independent contractor. There was no written contract between the parties. Each testifies in support of his own view of the relationship. The evidence is highly conflicting. The Bureau held a hearing and a rehearing of the matter. Each of the Commissioners filed a memorandum opinion giving his individual views at some length. Two of them reached the conclusion that the claimant was an employee, while the other Commissioner held that he was an independent contractor. This one issue of the status of the claimant is determinative of the correctness of the Bureau's decision.
Whether a worker is an employee or an independent contractor is sometimes difficult to determine. Certain tests have been developed by this and other courts to aid in the determination. One of the most important tests to be applied is the right of employer to control not merely the result but the manner in which the work is done and the methods used in its performance. Starkenberg v. North Dakota Workmen's Comp. Bureau, 73 N.D. 234, 13 N.W.2d 395; Janneck v. Workmen's Comp. Bureau, 67 N.D. 303, 272 N.W. 188; State ex rel. Woods v. Hughes Oil Co., 58 N.D. 581, 226 N.W. 586; Lilly v. Haynes Cooperative Coal Min. Co., 50 N.D. 465, 196 N.W. 556; Kronick v. McLean County, 52 N.D. 852, 204 N.W. 839.
An important factor in determining the right of control is the power of the employer to terminate the employment at any time without liability. L. B. Price Mercantile Co. v. Industrial Commission, 43 Ariz. 257, 30 P.2d 491; In re Black, 58 Idaho 803, 80 P.2d 24; Fox Park Timber Co. v. Baker, 53 Wyo. 467, 84 P.2d 736, 120 A.L.R. 1020. In Press Pub. Co. v. Industrial Acc. Commission, 190 Cal. 114, 210 P. 820, 823, the Supreme Court of California said: 'Perhaps no single circumstance is more conclusive to show the relationship of an employee than the right of the employer to end the service whenever he sees fit to do so.'
Factors that may also be considered in determining whether the relationship is one of employee or independent contractor is the furnishing of tools, the control of the premises where the work is done and the mode of payment. Lemkuhl v. Clark, 209 Minn. 276, 296 N.W. 28; Bergstrom v. Brehmer, 214 Minn. 326, 8 N.W.2d 328. It would seem that courts are inclined to give somewhat less weight to the mode of payment than to some other factors. In Burchett v. Department of Labor & Industries, 146 Wash. 85, 261 P. 802, 803, 263 P. 746, the court quotes the following from 12 R.C.L. 74, 75: See also In re Black, supra. Lillibridge v. Industrial Accident Commission, 4 Cal.App.2d 237, 40 P.2d 856; Lawson v. Sigfrid, 83 Colo. 116, 262 P. 1018; Riggins v. Lincoln Tent & Awning Co., 143 Neb. 893, 11 N.W.2d 810; Note 38 A.L.R. 839.
The question of whether the claimant was an employee or an independent contractor cannot be decided by the summary application of a general rule. Only a studied consideration of all the facts and circumstances enables us to reach a definite conclusion. We get little assistance from the few ultimate facts that were found by the Bureau or from the conclusions of the trial court that the findings of the Bureau are not sustained by the evidence. The claimant testified that he was working for the Northern Pacific Railroad on a shift that lasted from 3:30 p. m. to 12:30 a. m. and, therefore, had his mornings free. Beals wanted somebody to cut up meat at his plant and to pick and clean birds. Beals offered to pay the claimant 50% of the charges that were made to customers for the services rendered. The charge made for cutting meat was 2 1/2 cents a pound and one-half of that amount, or 1 1/4 cents was the amount that the claimant was to receive. The amount for cleaning, picking and sometimes wrapping the birds ranged from 20 to 35 cents each. One-half of that amount was the measure of the claimant's pay. When the work was performed the claimant made out a slip showing the amount of the total charge and the one-half that was coming to the claimant and turned the slip into the office. There was no definite pay day. Beals was out of town frequently, selling refrigerating plants and parts and its seems that the claimant was paid when he came back to the plant at irregular intervals, usually of about ten days. The...
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