O'Rourke v. Percy Vittum Company
| Decision Date | 26 February 1926 |
| Docket Number | 25,002 |
| Citation | 207 N.W. 636,166 Minn. 251 |
| Parties | MRS. M. J. O'ROURKE v. PERCY VITTUM COMPANY AND ANOTHER |
| Court | Minnesota Supreme Court |
Two writs of certiorari were issued to the Industrial Commission. One at the instance of the widow of M. J. O'Rourke to review its refusal to award compensation against either the Percy Vittum Company or Percy Vittum as an individual for the death of her husband; the other at the instance of Percy Vittum and his insurer to review the finding that O'Rourke was in the employ of Vittum and that his injury arose out of and in the course of such employment. Remanded.
Employer of farm labor not brought within compensation act by mere notice to Industrial Commission.
1. The compensation act excludes farm labor from its operation, but provides that it shall apply to such labor if the employer shall have elected to accept the provisions of the act by posting a statement of such election and filing a duplicate thereof with the Industrial Commission. Under this statute filing a notice without posting it does not bring the employer of such labor within the act.
Employe excluded from benefits of compensation act when his employment is casual and not in usual course of employer's business.
2. To exclude an employe from the benefits of the act under the provision that it shall not apply to persons whose employment is casual and not in the usual course of the business of the employer, the employment must be both casual and not in the usual course of such business.
Employe excluded from benefits of act while working outside scope of his employment to accommodate his employer.
3. An employe is not within the act while performing services outside the scope of his employment as a voluntary accommodation to his employer or to others.
But employe is within benefits of act when working by direction of his employer.
4. An employe who performs services outside the duties of his usual employment at the direction of his employer and in consequence of the relation of employer and employe existing between them is within the act.
Employer liable under the act when he directs employe to work for third party while still in his employ.
5. An employer who directs an employe to perform services for a third party remains liable under the act for injuries sustained, if the relation of employer and employe continued to exist between them during the performance of such services.
Cause remanded for additional findings.
6. The commission made no findings in respect to the claim against the Percy Vittum Company and the cause is remanded with directions to make findings upon that claim in accordance with the evidence and award compensation thereon.
Workmen's Compensation Acts, C.J. pp. 41 n. 8; 45 n. 25; 47 n. 34; 52 n. 70 New, 77; 53 n. 87, 88; 83 n. 49, 49 New; 123 n. 48 New; 125 n. 70 New.
George G. Chapin, for petitioners.
Sexton Mordaunt & Kennedy, for employer and insurer.
Clifford L. Hilton, Attorney General, and Hayner N. Larson, for Industrial Commission.
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 employes. He owns a farm of some 250 acres five or six miles from the stockyards on which he has a manager who carries on the farming operations and hires and discharges the farm employes. Vittum as an individual buys cattle, sheep and hogs from time to time and has employes of the corporation take them from the stockyards to the farm where they are fed and fattened, and has these employes 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 employes, but the employes 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 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 two or three thousand 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 ten 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.
G.S. 1923, § 4268, L. 1921, p. 92, c. 82, § 8, 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."
G.S. 1923, § 4271, the section 11 referred to, prescribes the method by which an employer or employe 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 and 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, 150 Minn. 182, 184 N.W. 833; Paucher v. Enterprise C.M. Co. 182 Iowa 1084, 164 N.W. 1035; Bernard v. Michigan U.T. Co. 188 Mich. 504, 154 N.W. 565; Young v. Duncan, 218 Mass. 346, 106 N.E. 1; Curran v. Wells Bros. Co. 281 Ill. 615, 117 N.E. 984; Beveridge v. Illinois Fuel Co. 283 Ill. 31, 119 N.E. 46; Barnes v. Illinois Fuel Co. 283 Ill. 173, 119 N.E. 48; McCune v. Pell & Bro. 192 Ky. 22, 232 S.W. 43; Bannon v. Watson, 207 Ky. 23, 268 S.W. 573; Kampmann v. Cross (Tex. Civ. App.) 194 S.W. 437; Farmers Petroleum Co. v. Shelton (Tex. Civ. App.) 202 S.W. 194; Daniels v. Charles Boldt Co. 78 W.Va. 124, 88 S.E. 613. 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...
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