Burkhardt v. State

• Decision Date: 01 May 1952
• Docket Number: No. 7289,7289
• Citation: 78 N.D. 818,53 N.W.2d 394
• Parties: BURKHARDT v. STATE et al.
• Court: North Dakota Supreme Court

Page 394

53 N.W.2d 394

78 N.D. 818

BURKHARDT v. STATE et al.

No. 7289.

Supreme Court of North Dakota.

May 1, 1952.

Syllabus by the Court

1. On an appeal from a decision of the Workmen's Compensation Bureau under the Administrative Agencies, Uniform Practice Act, Chap. 28-32 NDRC 1943, the District Court must review the evidence contained in the record certified from the Bureau to determine whether the findings of fact made by the Bureau are supported by the evidence and its decision is in accordance with law. Sec. 28-3219 NDRC 1943.

2. In determining whether a person is an employee or an independent contractor within the meaning of the Workmen's Compensation Act, all the facts and circumstances of the particular case should be given consideration.

3. One of the most important tests in determining whether a person employed to do certain work is an independent contractor or a mere servant is whether he has the right to control the method and manner of the work to be accomplished.

4. Other factors may be considered such as the method of payment for the work, whether a person is engaged in an independent occupation within which the work falls, whether he has the special skill required for such work, whether he has the right to hire and discharge workmen, whether he furnishes the necessary tools, materials and supplies and whether the contract contemplates labor on the job or the completion of the job or some portion thereof. The method of payment and attitude and intention of the parties as determined from all the circumstances of the case may also be considered.

5. The evidence is examined and it is found that Val Messer was an independent contractor; that the plaintiff's husband was at the time of his death in Messer's employ; that he was fatally injured in the course of his employment and that the plaintiff is entitled to an award of compensation in accordance with the North Dakota Workmen's Compensation Act.

Floyd B. Sperry, Golden Valley, and Hyland & Foster, Bismarck, for appellant.

E. T. Christianson, Atty. Gen., and Paul M. Sand, Asst. Atty. Gen., for respondent State of North Dakota, doing business as Workmen's Compensation Bureau.

Mackoff, Kellogg, Muggli & Kirby, Dickinson, for John Schmidt.

Strutz, Jansonius & Fleck, Bismarck, for respondent Val Messer.

GRIMSON, Judge.

Rudolph Burkhardt died from injuries received in a fall from the roof of a barn which he was helping to construct on the farm of John Schmidt near Richardton, North Dakota. The plaintiff is his widow. It is claimed on her behalf that the deceased was at the time an employee of Val Messer, an independent contractor, building the barn. Messer, however, had not complied with the North Dakota Workmen's Compensation Act. Instead of bringing suit against him for damages plaintiff elected to file a claim for an award of compensation under the Workmen's Compensation Law, Title 65 NDRC 1943, Chap. 65-09. Hearings on said application were held by the Workmen's Compensation Bureau under the Administrative Agencies Uniform Practice Act, Chapter 28-32 NDRC 1943. Its dismissal of the claim was appealed to and affirmed by the District Court. On appeal from that judgment of the District Court to the Supreme Court it was discovered that the notice of the hearing before the Bureau had not been served on interested parties as required by law. The case was, therefore, remanded to the District Court with directions to vacate the judgment entered and to remand the case to the North Dakota Workmen's Compensation Bureau for a hearing on the claim after due notice was served on all interested parties as provided by law. See Burkhardt v. State, N.D., 42 N.W.2d 670.

The District Court carried out the mandate of this court and remanded the case to the North Dakota Workmen's Compensation Bureau. A hearing was duly had before the Bureau on the claim of the plaintiff after due notice to all interested parties. The Bureau thereafter came to the conclusion that Rudolph Burkhardt at the time of the injuries resulting in his death was an employee of John Schmidt; that John Schmidt was engaged in an agricultural pursuit and that Burkhardt's employment at the time of the injury, resulting in his death, was casual. The Bureau dismissed the claim. The claimant duly appealed to the District Court asking for trial anew, alleging as error the finding of the Bureau that Rudolph Burkhardt was an employee of John Schmidt and that his employment at the time of his injury was casual or in an agricultural pursuit.

All of the proceedings had before the Workmen's Compensation Bureau were certified to the District Court on the appeal. Sec. 28-3215 NDRC 1943. The review of the District Court is directed to 'affirm the under the statute, Sec. 28-3219 NDRC 1943, the District Court is directed 'to affirm the decision of the agency unless it shall find that such decision or determination is not in accordance with law * * * or that the findings of fact made by the agency are not supported by the evidence * * *.' The District Court affirmed the Bureau's dismissal of the claim. An appeal to this court was thereupon taken by the plaintiff under Sec. 65-1001 NDRC 1943, demanding a trial de novo and alleging error in failing to find that the defendant Messer was an independent contractor, setting forth eight specifications in support thereof and in failing to find that Rudolph Burkhardt was employed by Messer instead of Schmidt and in failing to grant the claim of the plaintiff.

It is claimed on the part of the plaintiff that Messer was an independent contractor and that Burkhardt was working for him in the building of Schmidt's barn; that as such independent contractor Messer was subject to the provisions of the North Dakota Workmen's Compensation Act, Chap. 65-09 NDRC 1943, even if he had not complied with the provisions thereof; that Burkhardt died in the performance of his duties in the course of his employment and that Mrs. Burkhardt is entitled to an award of compensation. On behalf of the appellees it is claimed that Messer was employed by Schmidt as Foreman for the building of the barn and that both Messer and Burkhardt were employee of Schmidt in casual employment or in agricultural service.

It becomes necessary, therefore, to first determine whether the conclusions of the Bureau that Messer was not an independent contractor but that both he and Burkhardt were employees of Schmidt, are supported by the evidence and are in accordance with law.

The statute does not make any definition of the term 'independent contractor.' The courts have applied various tests. Different factors have been cited and emphasized depending somewhat on the particular circumstances of each case. All the facts and circumstances of the particular case may be considered in making a determination of whether a workman is an employee or an independent contractor. Knuffke v. Bartholomew, 106 Neb. 763, 184 N.W. 889; Lowe v. Chicago Lumber Company of Omaha, 135 Neb. 735, 283 N.W. 841; 1 Schneider's Workmen's Compensation Law, 285.

'The most important test in determining whether a person employed to do certain work is an independent contractor or a mere servant is the control over the work which is reserved by the employer. Whether one is an independent contractor depends upon the extent to which he is, in fact, independent in performing the work. Broadly stated, if the contractor is under the control of the employer, he is a servant; if not, under such control, he is an independent contractor.' 27 Am.Jur. Independent Contractors, Sec. 6, p. 486.

This principle has been generally approved and applied. Mutual Life Insurance Co. of New York v. State of North Dakota, 71 N.D. 78, 298 N.W. 773, 138 A.L.R. 1115; 71 C.J. 449; 58 Am.Jur. 670; Angell v. White Eagle Oil & Refining Co., 169 Minn. 183, 210 N.W. 1004; Pace v. Appanose County, 184 Iowa 498, 168 N.W. 916; Schlichting v. Radke, 67 S.D. 212, 291 N.W. 585; McCarthy v. City of Murdo, 68 S.D. 12, 297 N.W. 790; Ronning v. Carter, 185 Wis. 384, 200 N.W. 652.

This court held in Bernardy v. Beals, 75 N.D. 377, 28 N.W.2d 374, 376:

'One of the most important tests to be applied is the right of the 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 Compensation 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 Co-op. Coal Mining Co., 50 N.D. 465, 196 N.W. 556; Kronick v. McLean County, 52 N.D. 852, 204 N.W. 839.'

Another important factor and as an incident of the right of control is the right to hire and discharge workmen. Bernardy v. Beals, supra, and cases cited. A further indication to be considered in determining the relationship is the mode, method or basis of payment. Meredosia Levee & Drainage District v. Industrial Commission of Ill., 285 Ill. 68, 120 N.E. 516. That, however, has been given less weight than some other factors. Bernardy v. Beals, supra; 71 C.J. 471; Ryan v. Twin City Wholesale Grocery Co., 210 Minn. 21, 297 N.W. 705; Finn v. Phillippi Brothers, 211 Minn. 130, 300 N.W. 441. The fact that the work to be done is such as required special skill for its performance is a circumstance to be considered. Shannon v. Western Indemnity Co., Tex.Com.App., 257 S.W. 522. The furnishing of tools, materials and supplies should be considered although the courts have held both ways as to the conclusiveness thereof. 71 C.J. 467, 469.

Other tests which may be considered under the evidence of this case are the attitude and intention of the parties as determined from all the circumstances of the case. 58 Am.Jur. Workmen's Compensation, Sec. 138 p. 670, whether the work is a part of the regular business of the employer, Mallinger v. Webster City Oil Co., 211 Iowa, 847, 234 N.W. 254, whether the contract...