Nesseth v. Skelly Oil Co.

• Decision Date: 08 February 1929
• Docket Number: No. 26996.,26996.
• Citation: 223 N.W. 608,176 Minn. 373
• Parties: NESSETH v. SKELLY OIL CO. et al.
• Court: Minnesota Supreme Court

223 N.W. 608

176 Minn. 373

NESSETH v. SKELLY OIL CO. et al.

No. 26996.

Supreme Court of Minnesota.

February 8, 1929.

Certiorari from Industrial Commission.

Proceeding under the Workmen's Compensation Act by Thomas Nesseth, employé, opposed by the Skelly Oil Company and Community Service Station Company, employer, and the Federal Surety Company, insurer. At the beginning of the testimony, by consent of the parties, the case was dismissed as to the defendant Skelly Oil Company. An award of compensation was affirmed by the Industrial Commission, and the insurer brings certiorari. Affirmed.

Ware & Melrin, of Minneapolis, for appellant.

A. J. Rockne, of Zumbrota, for respondent employee.

Granger, Clemens & Blethen, of Rochester, for Community Service Station Co.

WILSON, C. J.

Writ of certiorari to review a decision of the Industrial Commission.

The petitioner was seriously injured while unloading a tank car of gasoline. The commission affirmed the findings of the referee and awarded compensation. The sole question for our consideration is whether the evidence supports the finding that petitioner was an employé.

The Community Service Station Company, herein mentioned as the company, is a distributor of gasoline, oil, lubricants, and kindred products. It has a storage station at Zumbrota. The controversy is between the petitioner and the insurer, which claims that the petitioner was an independent contractor.

On January 1, 1926, a written contract was made between the company and the petitioner wherein the latter was termed the "agent," and wherein the company agreed to pay the agent, as full compensation for his services and expenses incurred by him, a specified commission on the commodities sold and delivered by the agent for the company. It agreed to furnish the necessary blank forms to conduct the business and to cover the agent's truck equipment with public liability and property damage insurance under its blanket policy having a fleet coverage rate. The agent agreed: To be governed by the company in fixing prices; to inspect and keep the company notified as to the condition of all tanks at his station; to furnish all necessary trucks and equipment for his work; to account for all moneys and commodities received; to hire and pay for all necessary help; to invoice all sales in the name of the company and to promptly collect and remit; to not sell on credit without written authority and that he would be liable for sales in violation of this provision; and to reimburse the company for the premium actually paid for said insurance.

The contract contained these provisions: "The agent, hereby agrees to take due and proper care of and be responsible for all property of the company entrusted to his keeping, and to sell and deliver commodities supplied to him and remit for same at the prices prescribed by the company and to perform such other services as may be required for the proper conduct of the business. * * * The means and manner of performing the terms of this contract are left to the discretion of the agent."

There can no longer be any doubt but that the real test as to whether a person is an independent contractor or an employé is whether the asserted employer, under his arrangement with the other party, has or has not any authoritative control of the latter with respect to the manner and means in which and by which the details of work are to be performed. In the last analysis this test must always determine what was the essential nature of the relationship of the parties. Herron v. Coolsaet Bros., 158 Minn. 522, 198 N. W. 134; Ledoux v. Joncas, 163 Minn. 498, 204 N. W. 635; Bosel v Henderson Holding Co., 167 Minn. 72, 208 N. W. 421; Angell v. White Eagle Oil Co., 169 Minn. 183, 210 N. W. 1004; Lynch v. Hutchinson Produce Co., 169 Minn. 329, 211 N. W. 313; Rouse v. Town of Bird Island, 169 Minn. 367, 211 N. W. 327; Morss v. Murphy T. & S. Co., 170 Minn. 1, 211 N. W. 950; Moore v. Kileen &amp Gillis, 171 Minn. 15, 213 N. W. 49; Krause v. Bodin, 172 Minn. 467, 215 N. W. 838; Schonberg v. Zinsmaster Baking Co., 173 Minn. 414, 217 N. W. 491.

The contract specifies many limitations upon the agent. It defines quite definitely his duties and restrictions. The only thing left to which he may apply his discretion is that he may work when he wishes, go when and where he chooses, and select his routes and customers. But this is no more than the privilege of many traveling...