O'Rourke v. Percy Vittum Co.
| Decision Date | 26 February 1926 |
| Docket Number | No. 25002.,25002. |
| Parties | O'ROURKE v. PERCY VITTUM CO. et al. |
| Court | Minnesota Supreme Court |
Proceeding under the Workmen's Compensation Act by Mrs. M. J. O'Rourke, claimant, for the death of M. J. O'Rourke, her husband, opposed by the Percy Vittum Company and Percy Vittum, employers, and the Hartford Accident & Indemnity Company, insurer. To review a decision of the Industrial Commission denying compensation, on appeal from an award by a referee, the claimant, Mrs. O'Rourke, and Percy Vittum and his insurer bring separate writs of certiorari. Remanded, with directions.
Sexton, Mordaunt & Kennedy, of St. Paul, for appellant.
George G. Chapin, of St. Paul, for respondent.
The Percy Vittum Company is a corporation engaged in the business of selling live stock on commission at the stockyards in South St. Paul. It does not buy live stock nor own any, but acts only as a sales agent for shippers. Percy Vittum is president of the company, and has and exercises control over all its employés. He owns a farm of some 250 acres 5 or 6 miles from the stockyards, on which he has a manager who carries on the farming operations and hires and discharges the farm employés. Vittum as an individual buys cattle, sheep, and hogs from time to time, and has employés of the corporation take them from the stockyards to the farm, where they are fed and fattened, and has these employés bring them back to the stockyards when they are to be sold. He makes no payment for these services either to the corporation or the employés, but the employés receive their regular wages from the corporation covering the time they are engaged in this work. He also has the manager of the farm aid in the work of the corporation at the stockyards at times, and the corporation makes no payment for his services.
The corporation is under the Workmen's Compensation Act (Gen. St. 1923, §§ 4261-4337), and carries a policy in the Hartford Accident & Indemnity Company insuring it against liability for accidents. Vittum as an individual filed a notice with the Industrial Commission that he elected to come under the Compensation Act in his business of farming, but posted no notice on the farm that he had elected to come under the act. He also took out a policy in the same company which had insured the corporation, insuring him as an individual against liability for accidents in his farming operations.
M. J. O'Rourke had been in the employ of the corporation for several years; and at Vittum's direction had assisted in taking live stock to and from the farm several times in 1924. Vittum had 2,000 or 3,000 cedar trees of various sizes upon the farm, and sold quantities of them from time to time for transplanting. At Vittum's request, made some days earlier, O'Rourke went to the farm on September 28, 1924, for the purpose of getting a few of these trees. While digging them, he fell down the face of a nearly perpendicular bluff, and sustained injuries from which he died 10 days later. He left a widow and three small children. The widow filed a petition for compensation with the Industrial Commission, asserting that both the corporation and its insurer, and Vittum as an individual and his insurer, were liable under the Compensation Act.
The evidence was taken before a referee, who found as facts that, at the time of the accident, O'Rourke was in the employ of both the corporation and Vittum as an individual, and that the accident arose out of and in the course of his employment by Vittum as an individual. Upon these facts the referee awarded compensation against Vittum as an individual and his insurer. They appealed to the commission from this award. The petitioner appealed to the commission from the refusal to award compensation against the corporation and its insurer. Both appeals were submitted to the commission upon the record returned by the referee.
The commission set aside the findings of the referee, and made findings to the effect that O'Rourke was in the employ of Vittum as a farm laborer at the time of the accident, that it arose out of and in the course of his employment as such farm laborer, and that Vittum had never posted a statement of his election to accept the provisions of the Compensation Act as an employer of farm labor. Upon these findings the commission determined that the petition "should be and the same is in all things denied."
Two writs of certiorari were issued — one upon the application of the petitioner; the other upon the application of Vittum and his insurer. The petitioner asserts that the commission erred in holding that O'Rourke was not within the protection of the Compensation Act, and claims that both the corporation and Vittum as an individual are liable under that act. Vittum and his insurer assert that the commission erred in holding that O'Rourke was in the employ of Vittum as a farm laborer, and that the accident arose out of and in the course of his employment as such farm laborer.
Section 4268, G. S. 1923 (section 8, c. 82, Laws 1921), excluded farm laborers and certain others from the operation of the act, and then provides:
"That part 2 of this act shall apply to farm labor if the employer shall have elected to accept the provisions of such part 2 by posting a written or printed statement of his election and filing a duplicate thereof with the Industrial Commission as provided by section 11 of this act."
Section 4271, G. S. 1923, the section 11 referred to, prescribes the method by which an employer or employé who is subject to part 2 of the act may change his status to that of one not subject thereto. To effect such a change an employer is required to post and keep posted on the premises a notice of his election not to be bound by the provisions of part 2 and to file a duplicate thereof with the Industrial Commission, and his election becomes effective when the copy of the notice is filed with the commission. This section prescribes the procedure by which those within the act may place themselves outside its operation. Vittum, as an employer of farm labor, was outside the operation of the act, but could bring himself within it by posting and filing the prescribed notice. He filed a notice, but posted none. To leave no room for uncertainties or disputes leading to needless litigation, the Legislature specified clearly and definitely the acts necessary to effect a change of the existing status; and the courts uniformly hold that, to effect a change, all the statutory requirements must be complied with or the status remains unchanged. Larson v. Trageser, 184 N. W. 833, 150 Minn. 182; Paucher v. Enterprise Coal Mining Co., 164 N. W. 1035, 182 Iowa, 1084; Bernard v. Michigan U. T. Co., 154 N. W. 565, 188 Mich. 504; Young v. Duncan, 106 N. E. 1, 218 Mass. 346; Curran v. Wells Bros. Co., 117 N. E. 984, 281 Ill. 615; Beveridge v. Illinois Fuel Co., 119 N. E. 46, 283 Ill. 31; Barnes v. Illinois Fuel Co., 119 N. E. 48, 283 Ill. 173; McCune v. Wm. B. Pell & Bro., 232 S. W. 43, 192 Ky. 22; Bannon v. Watson (1925) 268 S. W. 573, 207 Ky. 23; Kampmann v. Cross (Tex. Civ. App.) 194 S. W. 437; Farmers' Petroleum Co. v. Shelton (Tex. Civ. App.) 202 S. W. 194; Daniels v. Boldt Co., 88 S. E. 613, 78 W. Va. 124. In the Iowa case and two of the Illinois cases above cited, the notice was filed with the commission but not posted, and was held to be ineffective.
Vittum had not brought himself within the act, but, even if he had, it is doubtful if compensation could be awarded against him, in view of the provisions of sections 4325 and 4326, G. S. 1923, for he paid no wages to O'Rourke, and O'Rourke expected none from him.
The statute declares that every person not excluded by section 4268, G. S. 1923, who employs another to perform services for hire, and to whom he directly pays wages, is an employer within the meaning of the act, and that every person not excluded by section 4268, G. S. 1923, in the service of another under any contract of hire, express or implied, written or oral, is an employé within the meaning of the act. Section 4326, G. S. 1923. The employer is required to make compensation for injuries to an employé "arising out of and in the course of his employment." Section 4261, G. S. 1923.
O'Rourke was employed and paid by the corporation; and, if the accident arose out of and in the course of such employment within the meaning of the act, the corporation is liable for compensation. He was subject to, and obeyed, the orders of Vittum as a managing officer of the corporation. His work in taking live stock to or from the farm was done under orders from Vittum and during his hours of service for the corporation. While the evidence at the trial shows that the farm and...
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