Klein v. McCleary

• Decision Date: 09 February 1923
• Docket Number: No. 23220.,23220.
• Citation: 154 Minn. 498,192 N.W. 106
• Parties: KLEIN v. McCLEARY.
• Court: Minnesota Supreme Court

154 Minn. 498

192 N.W. 106

KLEIN

v.McCLEARY.

No. 23220.

Supreme Court of Minnesota.

Feb. 9, 1923.

Certiorari to review an award of the Industrial Commission in favor of Lena Klein against Dr. W. W. McCleary, in a proceeding under the Workmen's Compensation Act. Award affirmed.

Syllabus by the Court

In proceedings under the Workmen's Compensation Act (Gen. St. 1913, §§ 8195-8230), brought to this court for review, the findings of the commission will be sustained, unless they are manifestly unsupported by the evidence.

A finding by the commission that a workman was not a ‘farm laborer,’ and that the land upon which he was working when injured was used by his employer in the business of conducting a summer resort, is supported by the evidence.

The employment of the workman was not ‘casual,’ and was in the usual course of his employer's business and occupation, within the meaning of section 8, chapter 82, G. L. 1921. Ernest E. Watson, of Minneapolis, for relator.

Lewis E. Lohmann, of St. Paul, for respondent.

LEES, C.

Certiorari to review the award of the Industrial Commission in proceedings under the Workmen's Compensation Act (Gen. St. 1913, §§ 8195-8230). Respondent is the widow of Gust Klein, who was injured on October 20, 1921, while in the employment of relator, and died on November 23, 1921, as a result of the injury.

Section 8, chapter 82, G. L. 1921, excludes farm laborers from the benefits of the Compensation Act. Relator asserts that Klein was a farm laborer. The commission found that he was not, and awarded compensation. Relator attacks the finding. There is not much dispute about the facts, but there is about the inferences to be drawn from them. The relator is a physician residing in Chicago. Five or six years ago he purchased 40 acres of land bordering on Thunder Lake, in Cass county, in this state. At the time of the purchase, three cabins, a main lodge, and an old barn were on the land. Relator has since added six or seven cabins, a toolhouse, and a barn. He has given the name of ‘Thunder Lake Lodge’ to the place, and advertises it as a resort for hunters and fishermen in the wilderness of Northern Minnesota at the end of the trail. During the summer and early fall months he receives paying guests, who occupy the cabins and are furnished with meals in the main lodge. He keeps boats on the lake and charges his guests for their use. With the exception of a garden plot, none of the land had been cleared for cultivation when relator purchased it. He has since cleared 9 acres and seeded most of it to timothy and clover. A small portion is used to grow potatoes and garden vegetables to supply the table in the main lodge. A cow and chickens were kept on the place, and the milk and eggs produced were used for the same purpose.

[2] About three years ago relator purchased 80 acres of land some 6 miles from the lodge. There was a house and barn thereon, and a meadow containing about 30 acres. Since making the purchase, he has cleared 10 of the 80 acres, and annually cuts and puts up the hay crop on this land. He employed Edward Kruse as his manager. Klein was hired in July, 1921, to work on both places, and continued to work until he was injured. He received $40 a month and board and lodging. He made hay, planted potatoes, took care of the horses, milked the cow, and did other work ordinarily done by a farm hand. A cook and two assistants in the kitchen and dining room of the main lodge were also employed. The nearest railway station is Remer, about 10 miles distant. Supplies were obtained and guests met at that point, and were carried to the lodge in an automobile, driven sometimes by Kruse and sometimes by Klein. The lodge was regularly inspected by the state hotel inspector and was licensed as a hotel. From year to year relator added to the cleared land upon his holdings. For some 3 weeks prior to October 20, 1921, he and Kruse and Klein had been actively engaged in pulling stumps from the land where the lodge was located. On the last-mentioned date, while the three men were thus engaged, the sweep of the stump-pulling machine accidentally struck Klein's leg and crushed and lacerated it to such an extent that it became necessary to amputate it, and as a result he lost his life.

The commission found that relator used the land first purchased, together with the buildings thereon, as a summer and hunting resort for transient guests; that his business while in this state was conducting the resort known as ‘Thunder Lake Lodge’; and that Klein was employed in that business and was engaged in improving the grounds used in connection with the lodge when he was injured.

In reviewing these findings, we do not examine the evidence with the view of determining the facts. Their determination rests with the...