Graf v. Montgomery Ward & Co.

• Decision Date: 06 July 1951
• Docket Number: No. 35500,35500
• Citation: 49 N.W.2d 797,234 Minn. 485
• Court: Minnesota Supreme Court
• Parties: GRAF v. MONTGOMERY WARD & CO.

Page 797

49 N.W.2d 797

234 Minn. 485

GRAF v. MONTGOMERY WARD & CO.

No. 35500.

Supreme Court of Minnesota.

July 6, 1951.

On Taxation of Costs Oct. 19, 1951.

SYLLABUS OF THE COURT.

1. In determining whether a relationship is one of employe or independent contractor, the most important factor is the right of the employer to control the means and manner of performance. Other factors to be considered are mode of payment, furnishing of materials or tools, control of the premises where the work is to be done, and the right of the employer to discharge the employe. Held, under the evidence and the inferences which may clearly and reasonably be drawn from the evidence, that decision of commission that respondent was an employe of relator on the date of the accident must be affirmed.

2. Under M.S.A. § 176.15, which provides that an employer shall be liable for the reasonable expense incurred by or on behalf of an employe in providing nursing services, an award cannot be made for such services furnished by respondent's wife in the absence of a showing that respondent incurred expense for such services or that his wife was forced to give up other remunerative employment in order to render such services.

Affirmed on question of respondent being an employe; reversed on question of allowance of nursing services.

Francis D. Roth, Chicago, Ill., Doherty, Rumble, Butler & Mitchell, St. Paul, for relator.

G. W. Mantor, John T. O'Donnell, St. Paul, for respondent.

FRANK T. GALLAGHER, Justice.

Certiorari to review an order of the industrial commission affirming the findings of a referee allowing compensation and reducing the amount allowed by the referee for nursing services.

Martin Graf, respondent, was injured on August 19, 1949, when he fell from the roof of a residence in Minneapolis where he was engaged in installing a new roof.

The owner of the premises had contracted with Montgomery Ward & Company, relator, to replace the roof. It appears from the record that jobs such as that upon which respondent was engaged were secured by commission salesmen working out of relator's building material department. When a salesman called upon a prospect and obtained an order for a roofing job, the price quoted the purchaser included the necessary roofing material and the installation of the roofing. When a sale was made, the contract was reduced to writing on a four-page form prepared and furnished by relator. The first two pages of such form were identical. The third and fourth pages contained the same information as the first and second pages, except the information as to price, terms, and customer's acceptance. In addition, the third and fourth pages contained an installation agreement for signature by the installer. After the first page had been signed by the purchaser of the roofing, it was returned to relator's store and retained in its credit department. The second or duplicate page was sent to the customer. A work sheet was prepared and attached to the third page, and the third and fourth pages were then sent to relator's building material department.

Relator had made arrangements with some nine persons to do the actual roof installation work on jobs which it obtained, among whom was respondent. He had been doing installation work on jobs for which relator had furnished the material for about six years. Relator contends that during this time respondent held himself out to the public as a roofing contractor; that from 1949 until the time he was injured he did roofing installation work on jobs other than those obtained by relator; and that on those other jobs respondent furnished both labor and materials.

It appears that when respondent was working on a job procured by relator he ordinarily would learn the location of the job by going to relator's store, where he would sign the installation agreement attached to the proposal slip and receive a work sheet, which indicated the location of the job, the amount of material involved, and other information necessary for a proper installation. Respondent would obtain these work sheets from whomever was in relator's office when he called. When the job was completed, he would fill out a completion slip, which he was supposed to have the customer sign. After the job was finished, it was inspected by relator. If any job description on a work sheet which respondent received was not clear, he would telephone relator's office or speak to its inspector to obtain a clarification of what the contract provided. Respondent received the money due him on each job he completed at relator's store, where he presented a voucher, obtained in the building material office, to the cashier. All materials on these jobs were supplied and delivered to the job site by relator, but respondent furnished his own tools, ladders, and scaffolding, which were transported by him from job to job in his own vehicle. Respondent testified that 'On a couple of occasions' he had some workmen who were on their vacations help him 'a little bit? and that he 'split with them' what he got from relator on that particular job, but said that he did not employ anyone. He filed no federal income tax withholding slip with relator, nor did relator withhold any money for income tax purposes for money which was due respondent on jobs where he acted as installer or make deductions for federal social security tax purposes. It appears that respondent carried a public liability insurance policy, on which he paid the premiums and in which relator was named as an additional assured. Under the working arrangements with relator, respondent took care of complaints on jobs which he installed if some adjustment or correction was necessary, and ordinarily he received no additional remuneration for that work. His pay for installing the roof was based on a figure of $2.50 per 100 square feet.

Respondent said that on the evening before the accident relator's assistant manager of the building material department, Frank H. Forester, telephoned him and asked him if he would go to a certain location in Minneapolis the next morning and install the roof job involved. He claims that he did not want to go on that job as he was busy, but that Forester insisted that he go the next morning, and 'I gave in to him and went out.' Forester did not recall whether he telephoned respondent or whether respondent called him that evening, although he admitted that it was necessary that the installation on this job be started without delay. In any event, respondent did go directly to the designated location from his home the next morning without first going to relator's place of business to sign any installation agreement or receive any work sheet. He claims that Forester told him, 'You can sign it when you come in,' and Forester admitted that respondent had not signed anything on this particular job. It appears also from the record that respondent arrived at the place where the roof was to be installed about 8:30 on the morning of August 19, 1949, for the purpose of doing the work, and that the materials necessary for the installation of the roof had been previously delivered to that location by relator. Respondent was working alone on the job, and about an hour after he commenced work he fell from the edge of the roof to the ground, a distance of about 30 feet. The fall rendered him temporarily unconscious. When he regained consciousness, he observed that firemen were working over him, and they put him into an anbulance. Mention was made that they were going to take him to General Hospital, Minneapolis, but he told them that he lived in St. Paul and that he wanted to go to Bethesda Hospital. He claims that one of the firemen then said that they had just received a call to take him to Miller Hospital. Respondent claims that he was conscious while being taken to the hospital in the ambulance and that when he arrived at Miller Hospital Forester and Steven J. Callahan, an inspector for relator, were there awaiting him, as well as a Dr. Lannin, a stranger to respondent, who at once took over the care of the injured man. Forester testified that he believed Dr. Lannin had been summoned by relator's medical department.

The referee found that respondent was employed in the capacity of a roofer by relator under a Minnesota contract for hire at a five-day weekly wage of $110.12; that relator was an authorized self-insurer under the workmen's compensation law; that respondent suffered an injury on the date in question which arose out of and in the course of his employment; and that relator had statutory notice and knowledge of the accident. The referee further found that as a result of the accident respondent necessarily incurred medical expense totaling $227, hospital and therapy expense totaling $191.30, and practical nursing expense to Dorothy Graf, wife of respondent, in the sum of $933, all of which was unpaid except $150.30 due Miller Hospital, which respondent paid; that as a result of the accident respondent was temporarily and totally disabled for a period of 41 weeks and temporarily partially disabled for 3 3/5 weeks; and that in such partially disabled condition he was able to earn $55.06 a week. He also found that as a result of the accident respondent suffered a 20 percent permanent disability of his back, and awarded him compensation amounting to $1,338, with interest. He further ordered that relator afford respondent such additional medical and other treatment as might be reasonably necessary to cure and relieve him from the effects of the accident, together with compensation at the weekly rate of $30, or such other rate per week as his disability might warrant, from and including June 28, 1950, subject to the provisions and limitations of the workmen's compensation act. He also ordered relator to reimburse respondent for the medical, hospital, and nursing items above referred to and that relator pay the industrial commission $36 for the benefit of...