Gleason v. Geary

• Decision Date: 26 March 1943
• Docket Number: No. 33343.,33343.
• Parties: GLEASON v. GEARY.
• Court: Minnesota Supreme Court

8 N.W.2d 808

214 Minn. 499

GLEASON v. GEARY.

No. 33343.

Supreme Court of Minnesota.

March 26, 1943.

Appeal from District Court, Nobles County; Charles A. Flinn, Judge.

Action by Carol Virginia Gleason against Ben Geary to recover damages for personal injuries. There was a directed verdict for defendant, and from an order denying her motion for new trial, plaintiff appeals.

Order reversed.

Thomas J. Spence, of St. Paul, and Arnold W. Brecht, of Worthington, for appellant.

Freeman, King & Geer, of Minneapolis, for respondent.

JULIUS J. OLSON, Justice.

Plaintiff's action to recover damages for personal injuries resulted in a directed verdict for her adversary, and she appeals from an order denying her motion for new trial.

Plaintiff was employed as a "chicken picker" by Boote Hatchery & Packing Company at Worthington, whose business is that of buying, dressing, and preparing poultry and other farm products for the market. Defendant's business is that of a building contractor. In August, 1940, he was engaged by the hatchery to do some repair work at its plant. This job included breaking up and removing an old cement floor and reconstructing it. Some of the hatchery's men assisted defendant's workmen in the job. The reason for this arrangement was to save employing more expensive labor, the hatchery men being paid at a lower rate than that paid defendant's workmen.

During the evening and far into the night of August 28, a crew of men composed partly of hatchery employes and employes of defendant were at work breaking up and removing a section of the old cement floor and placing reinforcing steel in that area preparatory to laying the new floor the next morning. The area so prepared was located between the dressing room of women employes (where they changed their street clothes for their working apparel) and the "roughing" room, where they worked. As the situation then was, they could not go from their dressing room to their place of employment unless a bridge or some other contrivance was built over the portion of the area to be laid to new cement. The hatchery superintendent requested defendant to devise and construct such a means of egress, and defendant's workmen did so between 7 and 7:30 in the morning of August 29. Plaintiff entered the dressing room before the men got at the job. About half an hour later, when she was ready to go to work, she saw the new structure and realized at once its purpose. It is appropriately referred to in the record as a "cat-walk." When plaintiff reached about the middle of it it collapsed, causing her serious injuries. Predicating her cause upon defendant's negligence in its construction, she brought this action. It is conceded that if the ordinary negligence action lies she established her cause.

To avoid such liability, defendant pleaded, and it was admitted by the reply, that both employers, i. e., the hatchery and defendant, were under the workmen's compensation act. Therefore, so defendant contends, and the court adopted his view, since plaintiff has elected to accept compensation under the amendment to the act here in question, she cannot now maintain a common-law negligence action against him. The barrier is said to be Minn.St. 1941, § 176.06, subd. 1, Mason St.1940 Supp. § 4272-5(1).

Many cases involving this troublesome section have come here for review. In the memorandum opinion of the trial judge, after reviewing many of them, he concluded that these "unfortunately, but perhaps unavoidably, do not give any too accurate a pattern to follow." As to the first case there discussed, Uotila v. Oliver I. Min. Co., 165 Minn. 475, 206 N.W. 937, he thought we had not attempted "to construe the amendment, or lay down rules governing the application of it." As to subsequent cases, referring specifically to Rasmussen v. George Benz & Sons, 168 Minn. 319, 324, 210 N.W. 75, 212 N.W. 20, and Anderson v. Interstate Power Co., 195 Minn. 528, 532, 263 N.W. 612, which have to do with the delivery of commodities by the vendor to his purchaser, he deemed these to be helpful, as to the facts here presented, only to the extent "they may lay down the general rules of construction of the act." It was his thought that the general rule to be followed is that stated in the Rasmussen case, 168 Minn. 324, 210 N.W. 75, 77: "Business is related when the parties are mutually or reciprocally interested in a commercial way; or where the business of one has a necessary relation toward or in conjunction with the other." With this as his general guide and upon the language employed in the decision of Seidel v. Nicollet Ave. Properties Corp., 202 Minn. 569, 279 N.W. 570, the judge concluded that an instructed verdict for defendant was inescapable.

The importance of the question presented is obvious. Difficulty of solution should not frighten us from trying to find a more "accurate pattern" for the bench and bar "to follow" than those one may gather from our prior decisions.

In the Anderson case we discussed and sought to distinguish the facts there appearing from those in the Rasmussen case, but in deciding it we obviously limited the scope and effect of the test laid down in the Rasmussen case, for we there determined (195 Minn. 532, 263 N.W. 612, 614): "We hold that the mere supplying of a necessary product, such as electric power, does not create the relationship of a common enterprise. Nor does the fact that both companies had sent out employees to locate the trouble alter the situation. It was not a joint or concerted action. Each company was acting independently of the other. The admitted facts show that plaintiff and George Penny, defendant's employee, were each acting individually and for their separate employers. That both parties were seeking to locate trouble on their respective lines in approximately the same location at approximately the same time was incidental and fortuitous, and did not create the legal relationship of common enterprise."

Again, in the later case of Tevoght v. Polson, 205 Minn. 252, 255, 285 N.W. 893, 894, we said that in the Anderson case: "* * * this court held squarely that the mere supplying of a product by one employer to another did not bring the employers within either clause (a) or clause (b) of the amendment, that is, the vending and delivery of supplies upon the premises of one of the employers does not amount to either a furtherance of a common enterprise or to the accomplishment of the same or related purposes. We must therefore hold that the rule announced in the Rasmussen case is modified to the extent that it does not apply in a situation such as that now before us where one employer is merely engaged in delivering a commodity to another employer."

Our latest case is that of Gentle v. Northern States Power Co., 213 Minn. 231, 235, 6 N.W.2d 361, 363, where we again held (citing the Tevoght and Anderson cases) that it is now "definitely settled" 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 accomplishment of the same or related purposes."

Going back to the Seidel case, 202 Minn. 569, 572, 279 N.W. 570, we have this factual background: Seidel's employer was in the business of repairing electric elevators. Defendant owned a large office building where two such elevators were operated side by side. The elevator doors opening into the basement were out of repair, and plaintiff's employer undertook the repair job. New parts were needed to make the doors operate properly. Since it was necessary for defendant in the conduct of its business to keep one elevator in continual use, plaintiff proceeded to repair the other. In doing the work (202 Minn. 571, 279 N. W. 570, 571) "plaintiff desired elevator No. 2 to come down below the first floor, so as to pass therefrom an electric wire with a light bulb into the shaft of No. 1," where he was then working. Defendant's servant, in attempting compliance with this direction, "through some misunderstanding," lowered the wrong one, beneath which plaintiff was working. As a consequence plaintiff "was severely injured." A majority of this court thought that a common-law negligence action could not be maintained because the work being done came (202 Minn. 572, 279 N.W. 570, 572) "within the quoted language of both (a) and (b). The enterprise common to both employers here was the repairing of these elevator doors — defendant's need required it to be done, and the desire of plaintiff's employer to profit by doing the work. * * * Defendant's servant at plaintiff's bidding attempted to aid in the accomplishment of the same or related purposes in operation on the very premises where the injury was received."

Mr. Chief Justice Gallagher and Mr. Justice Loring concurred in the result, saying, in view of certain cases there cited (202 Minn. 575-576, 279 N.W. 570, 573): "* * * it may properly be held that plaintiff's employer and defendant were engaged in a course of business in the furtherance of `related purposes,' in operation on the premises where the injury was received. We confess, however, that we are unable to see how a person engaged in the business of operating an apartment building equipped with elevators, and one engaged in the business of repairing elevators, can be engaged in a course of business in `furtherance of a common enterprise.' To so hold would mean that everyone making repairs to or furnishing material for an apartment or commercial building would be engaged in a common enterprise with the owner of the building. We do not believe that such construction was ever intended by the Legislature. With that part of the opinion we are unable to agree." (Italics supplied.)

The Seidel opinion was filed April 29, 1938. It is interesting to note that on July 29, 1938, the opinion in Pittsburgh P. G. Co. v. Carey, 8 Cir., 98 F.2d 533, was filed. The Seidel case was not referred to, probably...