Gahr v. Strout

• Decision Date: 21 February 1930
• Docket Number: No. 27710.,27710.
• Parties: GAHR v. STROUT et al.
• Court: Minnesota Supreme Court

229 N.W. 340

179 Minn. 395

GAHR v. STROUT et al.

No. 27710.

Supreme Court of Minnesota.

February 21, 1930.

Certiorari from Industrial Commission.

Compensation proceeding by Mike Gahr, claimant, opposed by C. S. Strout, employer, and the Continental Casualty Company, insurer. To review an order of the Industrial Commission awarding compensation, employer and insurer bring certiorari. Order affirmed.

Kelly & Mangan, of Minneapolis, for appellant.

Joseph Harkness, Jr., of St. Paul, and C. E. Warner, of Minneapolis, for respondent.

OLSEN, C.

Certiorari to review an order of the industrial commission, awarding compensation for injuries to Mike Gahr, as employee of C. S. Strout. The Continental Casualty Company is joined as insurer. For brevity the employee will be referred to as plaintiff and the employer as defendant.

Plaintiff is a painter and decorator by occupation. Defendant owns and operates a grocery business at Monticello in this state, but does not own the building in which the business is carried on. The terms of his tenancy of the building are not shown, and it does not clearly appear whether defendant was under any obligation to make repairs. About November 9, 1928, defendant employed the plaintiff to paint the front of the store building. Plaintiff testified that he agreed to do the work for 50 cents an hour, and that it was understood or agreed that the entire cost of the job would be about $4. Defendant furnished the paint and a ladder for plaintiff's use. Defendant testified that plaintiff told him that the work would cost about $4 and that they agreed on that price; that nothing was said about 50 cents an hour. He said that he intended to engage plaintiff as his employee and after the accident reported him as such to the insurer; that he instructed plaintiff to burn off the old paint, and as to how he wanted the front painted; that two colors were to be used, and certain moldings were to be painted in a certain manner; that some strips were to be painted yellow and others green. He further testified that he considered it a regular part of his business to keep his store building in presentable condition and presentable repair; that he was making his store over into a community store and wanted the front painted a particular way.

On November 9, 1928, while plaintiff was engaged in doing the work and was standing upon the ladder mentioned, the ladder buckled or broke and he fell onto the sidewalk and was injured.

The referee found that plaintiff was an employee of the defendant for hire and that the accident arose out of and in the course of his employment, and awarded compensation. On appeal, the industrial commission added a finding that the employment was in the usual course of the business or occupation of the employer, and then affirmed the findings and decision of the referee.

1. Defendant and insurer contend here that the plaintiff was an independent contractor. The case of Schoewe v. Winona Paint & Glass Co., 155 Minn. 4, 191 N. W. 1009, is cited on this point. In that case the industrial commission had denied compensation on the grounds that Schoewe was an independent contractor and that the accident did not arise out of or in the usual course of the trade, business, profession, or occupation of the employer. The question before this court was whether there was any evidence to sustain the finding of the commission on either ground stated. This court concluded that it could not disturb the findings on...