Janneck v. Workmen's Comp. Bureau

• Decision Date: 18 March 1937
• Docket Number: No. 6465.,6465.
• Citation: 272 N.W. 188,67 N.D. 303
• Parties: JANNECK v. WORKMEN'S COMPENSATION BUREAU.
• Court: North Dakota Supreme Court

67 N.D. 303

272 N.W. 188

JANNECK

v.WORKMEN'S COMPENSATION BUREAU.

No. 6465.

Supreme Court of North Dakota.

March 18, 1937.

Syllabus by the Court.

1. One of the most important tests to be applied in determining whether a person who is doing work for another is an employee or an independent contractor is whether the person for whom the work is done has the right to control not merely the result, but the manner in which the work is done and the method used.

2. The evidence is examined, and it is held that the plaintiff, at the time of his injury, was not an employee of the Weddell Motor Company, but was working as an independent contractor, and that he is not entitled to compensation from the Workmen's Compensation Fund.

Appeal from District Court, Cass County; M. J. Englert, Judge.

Proceeding under the Workmen's Compensation Law by Charles W. Janneck, claimant, against the Workmen's Compensation Bureau. From a judgment reversing an order of the Workmen's Compensation Bureau, the defendant appeals.

Reversed.

P. O. Sathre, Atty. Gen., and Milton K. Higgins, Asst. Atty. Gen., for appellant.

E. M. Stern, of Fargo, for respondent.

MORRIS, Judge.

This is an appeal from a judgment of the district court reversing and setting aside an order of the North Dakota Workmen's Compensation Bureau and adjudging that certain injuries to the plaintiff were sustained by him in the course of his employment as an employee of the Weddell Motor Company, and that the plaintiff is entitled to compensation for such injuries and for certain expenses connected therewith as provided by the Workmen's Compensation Law of this state (Comp.Laws Supp.1925, § 396a1 et seq., as amended).

The bureau contends that the plaintiff was not an employee of the Weddell Motor Company at the time of his injury, but was an independent contractor, and that the Weddell Motor Company was not insured in the Workmen's Compensation Fund for the kind of work that the plaintiff was doing at the time of his injury.

The plaintiff and one Marvin Larson are both professional painters. In April, 1935, Larson approached the plaintiff and advised him that “he had a big paint job coming up from Mr. Weddell” and wanted the plaintiff to look the job over and to see Mr. Weddell. They went to see Weddell and Larson introduced the plaintiff and said, “I have another painter for you.” Weddell said, “That is O. K.,” and then wanted to know what it would cost to paint. The painting under consideration consisted of work in a building then vacant but which the Weddell Motor Company was preparing to occupy as a place of business. It appears that prior to this conversation Weddell had contracted with Larson for certain work in a written memorandum to which Janneck was not a party. The work covered by the memorandum, while in the same building, was different from that involved in the conversation between Weddell and Janneck and which the witnesses refer to in their testimony as the second job. This job in the course of which the injury occurred was arranged for at the time that conversation to which we have referred took place. According to Janneck's testimony, Weddell said, “Well, Janneck, what is it going to cost me to paint the front and a small office room upstairs and the big doors?” Janneck then figured up the job and in a day or so presented the figures to Weddell, who was satisfied. The price including material was $40. Both Janneck and Larson went to work about the 1st of May, and later they arranged with Weddell for three other jobs of painting in the same building. It therefore appears that the first job for which the written memorandum was made was contracted for by Larson alone. The second job, upon which Janneck was injured, was contracted for by Janneck alone. The three later jobs were arranged for between Weddell, Janneck, and Larson. The workmen furnished their own equipment. The respective jobs were agreed upon before work was commenced for a lump sum which included labor and material. The material was charged to Weddell and the cost deducted from the contract prices. Janneck and Larson worked together on all of the jobs. On the first job Larson received all the pay for labor, which was applied upon the purchase price of a car. On the second job Janneck received all the pay for labor in cash. On the three last jobs the pay for labor was divided equally between the two workmen. It also seems that they did not complete one job before starting the next but pursued their work in the most convenient manner. During the progress of the work they also worked together on another job for other parties in a different building.

The plaintiff claims that he was an employee of the Weddell Motor Company, and in support of his contention urges that even though he and Larson were paid lump sums under definite agreements for painting specified rooms or parts of the building and equipment, Weddell exercised supervision over the work as an employer. The bureau claims that the work was done under contract and that, although Weddell gave some directions and suggestions, these merely affected the result and not the manner in which the work was done. The only suggestion made by Weddell regarding the work included in the job upon which Janneck was injured was a direction that a coat of...