Tucker v. Newman
| Decision Date | 26 May 1944 |
| Docket Number | No. 33768.,33768. |
| Citation | 217 Minn. 473,14 N.W.2d 767 |
| Parties | TUCKER v. NEWMAN. |
| Court | Minnesota Supreme Court |
C. U. Landrum and D. N. Lindeman, both of Detroit Lakes, for relator.
DeLury & Peterson, of Walker, for respondent.
Certiorari to review a decision of the industrial commission affirming a referee's award of compensation to respondent for accidental injuries sustained while in relator's employ in the operation of a grinder used in the preparation of food for foxes and mink raised by relator.
Relator owned approximately 640 acres of land, 70 of which were under cultivation and the remainder in pasture. About three acres were used for pens for the foxes and mink. He also kept 50 head of cattle, some milch cows and young stock, four horses, and about 200 sheep, together with farming tools and equipment. When respondent was employed there was no definite agreement as to the duration of his employment, and there is disagreement now between the parties as to the duties he was to perform. Relator contends that he employed respondent to repair the farm buildings and dig a basement, and that apart from occasionally watering the mink he had no duties with reference to their care. Respondent insists that his principal employment consisted in helping to feed, water, generally care for, and finally assist in the pelting of the animals; that on the day of his injury he was directed to "go down and get ready to start grinding" the horse meat for their food; that he started the grinding machine, caught his left hand in the machine, and suffered the loss of four fingers. Relator denies giving such an order and insists that he cautioned respondent to stay away from the machine.
On this appeal, relator contends that respondent's employment was that of a farm laborer and that any duties he performed in connection with the care of the foxes and mink were incidental and did not operate to change the character of such employment; that relator's fox and mink business was an undivided part of his general farming operations and, as such, came within the exemptions of the Workmen's Compensation Act, Minn.St.1941, § 176.01 et seq.; that, in any event, respondent disobeyed instructions and at the time of his injury was outside the sphere of his employment and forfeited any benefits to which he might otherwise have been entitled under the act.
1. Relator strongly urges that respondent was employed as a farm laborer to repair farm buildings, and, while occasionally he may have directed respondent to water the mink, that whatever work respondent did in connection with the raising of mink and foxes was incidental and did not operate to change the general character of his employment as a farm laborer. He asserts further that the fact that he was injured while grinding food for the animals was not significant in determining the character of his employment. Neither the task on which a workman is engaged at the time of injury nor the place where it is being performed is determinative of whether he is a farm laborer. Peterson v. Farmers State Bank, 180 Minn. 40, 230 N.W. 124; Schroepfer v. Hudson, 214 Minn. 17, 7 N.W.2d 336. Whether an employe is covered by the act is determined by the whole character of his employment. Partridge v. Blackbird, 213 Minn. 228, 6 N.W.2d 250. Respondent testified that his work was connected principally with the fur farm and that "the crop was all farmed when I started there"; that during the six weeks he was employed before his injury he spent about one week digging a basement and laying the foundation for a cold storage unit to be used for the preservation of horse meat for the animals and another 10 or 12 days shingling a kitchenette on the farm residence and helping relator's son-in-law with some building repairs; that during the remainder of the time his work was confined to taking care of the foxes and mink. When asked, "And how long would it take to feed the foxes?" he replied: "Just takes most of the forenoon anyway—probably four or five hours." And further: "And what did you do during the afternoon then?" to which he replied: "About that time we started pelting; we would go out and kill the mink for pelting, and then we would clean cages and change the bedding around." Respondent testified that he had been assisting with the pelting for a week or two before his injury. He stated that he helped feed the cows three or four times and assisted one Jensen around the barn. Relator insists that the carpentry work done by respondent, plus the fact that he had on occasion helped with the barn work, is evidence that the character of his work was that of a farm laborer. It does not follow, because respondent intermittently did some work outside of his principal work on the fur farm, that such occasional duties operated to change the character of his employment. "A workman is not a farm laborer simply because at the moment he is doing work on a farm." Oberg v. DuBeau, 202 Minn. 476, 479, 279 N.W. 221, 223. There are some kinds of work performed on a farm which, in the ordinary course of things, might be performed by either a mechanic employed in an occupation or trade within the act or by a farm laborer as a part of the work ordinarily done about a farm. Schroepfer v. Hudson and Peterson v. Farmers State Bank, supra; 1 Schneider, Workmen's Compensation Law, 2d Ed. §§ 31, 32. In the Schroepfer case, we cited with approval the following statement from the Peterson case (214 Minn. 21, 7 N.W.2d 338):
Therefore, if respondent was employed principally to assist in the fox and mink business and that was the main character of his employment, he did not "step out of character" by doing the incidental work on the farm itself or the carpentry work on the farm buildings.
It may be conceded that testimony adduced in behalf of relator would have justified a finding that respondent was employed as a laborer on the farm and spent the greater part of his time in connection with that employment. However, there was testimony in direct conflict with this contention justifying the determination of the commission as stated in its memorandum:
"* * * Here the employe spent the greater portion of his time in furthering his employer's interests in the operation of the `fur farm' and was injured while working in this business enterprise."
Whether respondent was employed as a farm laborer or as a laborer in the fox and mink business was a fact question for the commission to determine. Schroepfer v. Hudson, 214 Minn. 17, 7 N.W.2d 336, supra. Upon conflicting testimony, findings of fact by the commission reasonably supported by the evidence are conclusive on review. Hill v. Umbehocker, 201 Minn. 569, 277 N.W. 9; Schroepfer v. Hudson, supra.
2. Having reached the conclusion that the evidence sustains the finding of the commission that respondent was employed primarily as a workman in connection with relator's business of raising foxes and mink, we come to a consideration of whether such activity constituted farming within the meaning of the Workmen's Compensation Act, Minn.St.1941, § 176.05, Mason St. 1940 Supp. § 4272-4, so as to be exempt from the provisions thereof.
In 1936, relator brought his foundation stock of 50 breeders of foxes and mink from Canada to his farm near Detroit Lakes. Since that date his stock has increased to the extent that in the 1941 season he raised between 900 and 1,000 animals. It appears that relator's two sons and all three of his employes, except Martin Jensen, devoted their full time to the care of the animals either by way of watering, feeding, or cleaning their cages, or preparing their food, and, finally, pelting. One Glenn Sander, a part-time employe, also devoted his time to their general care. Jensen was engaged primarily to take care of the barn and farm stock. None of the food for the foxes and mink was produced upon relator's farm. It appears that from a modest beginning he had increased his business to a sizable proportion, that he had acquired the necessary machinery for grinding the food, and was making plans to build a cold storage plant in connection with that business.
Relator calls attention to the amount of farm machinery and the number of cows, sheep, and horses on his farm in support of his contention that he was engaged in farming. It may be conceded that he was extensively engaged in farming, but it also appears that, in addition to farming, relator carried on a separate and distinct business in raising foxes and mink. The rule is settled that:
Schroepfer v. Hudson, 214 Minn. 19, 7 N.W.2d 337, supra.
To the same effect are Hebranson v. Fairmont Creamery, 187 Minn. 260, 245 N.W. 138; Greischar v. St. Mary's College, 176 Minn. 100, 222 N.W. 525.
Work may be farm labor if associated with farm activity, but if carried on as a commercial enterprise it is subject to the Workmen's Compensation Act. Hagelstad v. Usiak, 190 Minn. 513, 252 N.W. 430. Here, raising mink and foxes was not a mere incident to the...
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