Finn v. Phillippi Bros.

• Decision Date: 24 October 1941
• Docket Number: 32863.
• Citation: 300 N.W. 441,211 Minn. 130
• Parties: FINN v. PHILLIPPI BROS. et al.
• Court: Minnesota Supreme Court

300 N.W. 441

211 Minn. 130

FINN v. PHILLIPPI BROS. et al.

No. 32863.

Supreme Court of Minnesota.

October 24, 1941

Certiorari to Industrial Commission.

Proceeding under the Workmen's Compensation Act, Mason's Minn.St.Supp.1940, § 4272-1 et seq., by Mabel Finn to recover compensation for the death of her husband, opposed by Phillippi Brothers, the Antonsen Trucking Company, Employers Mutual Liability Insurance Company, the Maryland Casualty Company, and others. To review the decision of the Industrial Commission awarding compensation, the Antonsen Trucking Company and the Maryland Casualty Company bring certiorari.

Writ discharged, and decision affirmed.

Syllabus by the Court .

1. The evidence sustains the finding that Lloyd Finn was in the employ of the relator Antonsen Trucking Company when fatally injured in an accident arising out of and in the course of his employment.

2. It also sustains the finding that relator Maryland Casualty Company was the legal compensation insurer of the Antonsen Trucking Company at the time of Finn's injury.

3. There is no question of primary and secondary liability presented.

J. Arthur Bensen, of Sauk Rapids, for petitioner-respondent.

Reynolds & McLeod, of Minneapolis, for employers and insurers-respondents.

J Frank Boyles, of Minneapolis, for relators.

HOLT Justice.

Certiorari to review a decision of the industrial commission awarding workmen's compensation.

Mabel Finn petitioned the industrial commission to award compensation to her and a minor child for the death of her husband, Lloyd Finn, from injuries sustained June 20, 1938 in an accident arising out of and in the course of his employment. Death resulted the next day. The petition is drawn as if there were only one employer while in the caption three different concerns are designated as her husband's ‘ Employer’, viz., Philippi Brothers, Antonsen Trucking Company, and McCree Construction Company, and three different compensation insurance companies are named ‘ Insurer’, viz., Employers Mutual Liability Insurance Company, Maryland Casualty Company and Liberty Mutual Insurance Company.

The Antonsen Trucking Company and the Maryland Casualty Company answered jointly, specifically denying that Antonsen Trucking Company was Finn's employer at the time of the accident; admitted that the Maryland Casualty Company was the general compensation insurance carrier for Antonsen Trucking Company on June 20, 1938, but alleged that on the work then being done under the contract between McCree & Company and Antonsen Trucking Company, the former agreed to and did carry the insurance for Finn and the drivers of the Antonsen Trucking Company's trucks with the Liberty Mutual Insurance Company. McCree & Company, Phillippi Brothers, and Liberty Mutual Insurance Company answered jointly, denying that Lloyd Finn was in the employ of either McCree & Company or Phillippi Brothers at the time of his injury, admitting that the Liberty Mutual Insurance Company was the insurer of McCree & Company for compensation liability and likewise for Phillippi Brothers under a special risk permit. Employers Mutual Liability Insurance Company answered separately, but, since no one complains of the action of the commission in dismissing it, no further notice of that insurer need be taken. Hereinafter McCree & Company will be referred to as the McCree, Phillippi Brothers as the Phillippi, Antonsen Trucking Company as the Antonsen, the Maryland Casualty Company as the Maryland, and Liberty Mutual Insurance Company as the Liberty.

It appears without dispute that the McCree and the Phillippi jointly entered into a contract with the State Highway Department for the construction of two trunk highway projects. The one where Finn's injury occurred was the trunk highway project between Anoka and Elk River. The contract is dated September 20, 1937. On November 1, 1937, the McCree entered into a written contract with the Antonsen to do the trucking on the Anoka-Elk River prject. In this contract are these provisions bearing on the present controversy:

‘ The party of the second part [The Antonsen] have trucks equipped with dump bodies and desire to haul the bituminous mixture from the plant of the party of the first part [The McCree] and deposit same in the finishing machine where it is to be laid on the road * * *.

‘ On the Anoka-Elk River job, the party of the second part desires to haul the binder soil, clay and gravel to be put in stock piles for later mixing in a stabilizing plant and then haul the stabilized gravel either on the road or into a spreader belonging to the party of the first part. They also desire to haul the gravel for road mix, depositing same on the road, and to haul the plant mix bituminous material, depositing same in the finishing machine belonging to the party of the first part.’

Then the contract provides that on the Anoka-Elk River job the Antonsen will be...