Gentle v. Northern States Power Co.

• Decision Date: 13 November 1942
• Docket Number: 33287.
• Citation: 6 N.W.2d 361,213 Minn. 231
• Parties: GENTLE v. NORTHERN STATES POWER CO.
• Court: Minnesota Supreme Court

6 N.W.2d 361

213 Minn. 231

GENTLE v. NORTHERN STATES POWER CO.

No. 33287.

Supreme Court of Minnesota

November 13, 1942

Syllabus by the Court.

An electric power company, a customer to whom it furnishes electricity, and a contractor employed by the customer to perform priming, painting, spraying, and similar work on its building are not engaged in the accomplishment of the same or related purposes within the meaning of the workmen's compensation act, Minn.St.1941, § 176.06, Mason St.1940 Supp § 4272-5. Hence, in an action by an employe of the contractor against the electric power company to recover damages for injuries sustained through its negligence while he is performing his work for his employer, allegations in the electric power company's answer that it and its customer and the contractor were engaged in the same or related purposes should be stricken as irrelevant

Weyl & Weyl, Charles H. Weyl, and Lystad Mantor & Strauman, all of St. Paul, for appellant.

Fred A. Ossanna and Carlson & Carlsen, all of Minneapolis, for respondent.

PETERSON Justice.

Plaintiff sues to recover damages for personal injuries.

The complaint alleges that plaintiff was injured, while he was working on the roof of a building of the Northern Pump Company in Anoka county, through defendant's negligence in placing and maintaining a certain high tension wire over the building in close proximity to the roof, failing to properly insulate the wire, and transmitting through the wire, under the circumstances, electricity of high voltage.

In the answer defendant denied that it was guilty of negligence and alleged that plaintiff was guilty of contributory negligence and assumption of risk, and----

'that said wires [evidently defendant claimed that there was more than one wire] were so placed for the exclusive purpose of delivering electricity to said Northern Pump Company, and which it used in the operation of its business, and that at the time of said accident the plaintiff, said Northern Pump Company and this defendnt were subject to the terms of the Workmen's Compensation Act of the State of Minnesota, and were engaged in the due course of business in the accomplishment of the same or related purposes in operation on the premises where the injuries were received, and that the rights of all parties hereto are governed and subject to Subsection 1, Section 5, Chapter 64, Session Laws of Minnesota 1937.

'Further answering defendant alleges that plaintiff has elected to take compensation from his employer and has filed a petition therefor with the Industrial Commission of the State of Minnesota, and that he has been receiving compensation payments pursuant to said Act.'

On plaintiff's motion the portions of the answer relating to the defense of same or related purposes under the Workmen's Compensation Act were ordered stricken as irrelevant.

Then defendant moved for leave to amend the answer by inserting therein in lieu of the part ordered stricken certain allegations in amplification thereof to the effect that the Northern Pump Company had constructed the building in question for use as a factory in which to manufacture gun amounts and other items under contract with the United States Navy; that defendant installed the wires, subject to change of location upon order, for the exclusive purpose of delivering electricity to the pump company for use in the operation of its business; that the building was constructed and the wires installed pursuant to the regulations of the Navy department; that plaintiff was employed by A. E. Thomas Decorating Company, which had a contract with the Northern Pump Company to prime, paint, spray, and do similar work on the building; and that he was engaged at the time of injury in performing labor incident to his employer's contract.

The proposed amendment also alleged, as did the stricken portions of the answer, that defendant and plaintiff's employer were engaged at the time in the accomplishment of the same or related purposes in operation on the premises where the injuries were received; that all parties concerned were subject to part 2 of the Workmen's Compensation Act; and that plaintiff's exclusive remedy was the recovery of workmen's compensation, of which he had availed himself by applying for and receiving such workmen's compensation. Leave to amend was denied.

Defendant appeals from both orders--the one striking as irrelevant portions of the answer to the effect that plaintiff's employer and defendant were engaged in the same or related purposes and that plaintiff's sole remedy was under the Workmen's Compensation Law, and the other denying defendant leave to amend its answer by inserting therein the allegations mentioned in lieu of and in amplification of the portions stricken.

Here defendant's position is stated in its brief to be 'that in maintaining this pole line solely and exclusively for the Northern Pump Company it was assisting said company in the operation of its business and so was the plaintiff in doing his work and that they were engaged in the accomplishment of the same or related purposes in operation on the premises where the injury was received.'

Decision depends upon the construction of Minn.St.1941, § 176.06 Mason St.1940, Supp. § 4272-5, which so far as here material provides:

'Subdivision 1. Where an injury or death for which compensation is payable under circumstances also creating a legal liability for damages on the part of any party other than the employer, such party being at the time of such injury or death insured or self-insured in accordance with section 176.03, the employee in case of injury, or his dependents in case of death, may, at his or their option, proceed either at law against such party to recover damages or against the employer for compensation, but not against both.

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'The provisions of subdivision 1 of this section shall apply only where the employer liable for compensation and the other party or parties legally liable for damages were both either insured or self-insured and were engaged in the due course of business, (a) in furtherance of a common enterprise, or (b) the accomplishment of the same or related purposes in operation on the premises where the injury was received at the time thereof, and not otherwise.'

Under the statute plaintiff is not entitled to maintain this action if his employer and defendant were engaged in the accomplishment of the same or related purposes in operation on the premises where the injury was received at the time thereof.

The argument as to the meaning of the statute has taken a wide range, but we do not deem it necessary to pursue all the arguments because we have fully stated the history of the statute and settled its construction in such recent decisions as Tevoght v. Polson, 205 Minn. 252, 285 N.W. 893, which we followed in Smith v. Ostrov, 208 Minn. 77, 282 N.W. 745, and in Smith v. Kedney Warehouse Co., Inc., 197 Minn. 558, 267 N.W. 478, 269 N.W. 633.

In Tevoght v Polson, 205 Minn. 252, 285 N.W. 893, supra, we definitely settled the rule to be that the vending and delivery of supplies by a third party to the workman's employer does not amount to either a furtherance of a common enterprise or to the...