Schlichting v. Radke
Decision Date | 17 April 1940 |
Docket Number | 8265. |
Citation | 291 N.W. 585,67 S.D. 212 |
Parties | SCHLICHTING v. RADKE et al. |
Court | South Dakota Supreme Court |
Rehearing Denied May 23, 1940.
Appeal from Circuit Court, Brown County; Van Buren Perry, Judge.
Proceeding under the Workmen's Compensation Act by Louis Schlichting, claimant and employee, opposed by August J Radke, employer, and the South Dakota Employers Protective Association, insurer. From a judgment of the circuit court in claimant's favor, the employer and insurer appeal.
Reversed.
Caldwell & Burns, of Sioux Falls, for appellants.
D. M Joyce, of Aberdeen, for respondent.
Plaintiff brought this proceeding to recover compensation under the Workmen's Compensation Law ( ). The industrial commissioner made findings of fact in favor of the defendants and denied an award. An appeal was taken to the circuit court which reversed the holding of the industrial commissioner and entered judgment in favor of the plaintiff. Defendants have appealed.
The industrial commissioner found the facts, as follows
Under the provisions of the Workmen's Compensation Law, the relationship of employer and employee is necessary to entitle a recovery. The industrial commissioner found adversely to this relationship and found affirmatively that at the time plaintiff sustained the injury he was acting in the capacity of an independent contractor. Whether the burden was upon the plaintiff to establish the relationship of employer and employee, or whether the burden rested upon the defendants to disprove that relationship, we do not believe is material in this case, because under either view we are satisfied with the sufficiency of the evidence to support the findings as made.
Under the decisions of this court we must start from the premise that the findings of the industrial commissioner will not be disturbed if there is any reasonable and substantial evidence tending to support them. Cf., Annotations to SDC 64.0604. Under the rule as thus established the industrial commissioner may draw any reasonable inference from the evidence, and it is only where the evidence presented to the industrial commissioner is reasonably susceptible of but a single inference that the question becomes one of law for the court.
We are convinced that the findings as made by the industrial commissioner are sufficient upon which to predicate the status of the plaintiff as an independent contractor. This court in the case of Cockran v. Rice, 26 S.D. 393, 128 N.W. 583, 585, Ann.Cas. 1913B, 570, established the tests to determine whether one is an independent contractor as distinguished from an employee, as follows: "'* * * when the person employed is engaged under an entire contract for a gross sum in an independent operation, and is not subject to the direction and control of his employer, the relation is not regarded as that of master and servant, but as that of contractor and contractee; * * *."'
Innumerable definitions of an independent contractor are to be found in the decided cases, but we believe the above definition given by this court to be as satisfactory as any. As we read this definition three principal elements are involved. First, an entire contract for a gross sum; second, an independent operation; and third, the absence of direction and control. There are, perhaps, other tests which may enter in, but which are more or less incidental to the three as stated by this court, and in the final analysis it would seem that the principal test of the relationship is the right to control. The facts as found by the industrial commissioner come within the tests prescribed by this court.
But one question therefore remains, and that is whether the evidence is sufficient to support the findings and meets the tests which determine the relationship between plaintiff and defendant. First, is there any substantial evidence tending to show that Schlichting was engaged under an entire contract for a gross sum. The plaintiff in a written statement to the insurance company stated: "I was fixing the tractor Sunday, September 19, 1937, for $5 to get it ready for Monday as it was using too much oil." This statement by plaintiff is, in itself, perhaps sufficient upon which the industrial commissioner might base his findings to meet the first test as announced by this court, but after reading the entire evidence, we are convinced that it was within the province of the industrial commissioner to conclude that the plaintiff in performing the farm work for the defendant was employed on the basis of two dollars a day to be paid only for the days that he worked; that he was not to perform any farm work on Sunday; that the agreement to repair the tractor was something separate and apart from his agreement to do farm work; and that the contract was entire and for a gross sum. In regard to the second test, that is, whether the repairing of this tractor was in the nature of an independent operation, the defendant testified: This evidence, when considered in the light of the whole record, we are convinced was sufficient upon which the industrial commissioner might find that this was an independent operation and something which required a special skill over and above the skill required of a farm laborer, and which was, therefore, outside the scope of the employment of this plaintiff as a laborer on the farm of the defendant. Under the record it appears that after Radke employed the plaintiff to repair this tractor, he undertook no direction or control of the manner in which the plaintiff performed the work. Radke testified: From this evidence and from the fact that it...
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