Volding v. Harnish
| Decision Date | 15 February 1952 |
| Docket Number | No. 35760,35760 |
| Citation | 236 Minn. 71,51 N.W.2d 658 |
| Parties | VOLDING v. HARNISH et al. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. Where two or more employers are engaged in the due course of business in the furtherance of a common enterprise or in the accomplishment of the same or a related purpose so that their respective employes are exposed to the same or similar hazards as a result thereof; and where, while thus engaged, an employe of one of such parties receives an injury for which an employer other than his own may be liable, Held, under M.S.A. § 176.06, subd. 1, that such injured employe's recovery in an action at law is limited to the amounts provided by the Workmen's Compensation Act.
2. Where evidence established that plaintiff had been instructed by his employer to supervise defendant's initial store opening and, in performing such duties, had worked closely with employes engaged by defendant for the same purpose, had been exposed with them to the same or similar hazards, and, while thus engaged, was injured, Held that his recovery in a common-law action against defendant for such injuries is limited by the terms of § 176.06, subd. 1.
3. Where employes of two or more employers engaged in a common enterprise are exposed to the same or similar hazards in connection therewith, the action at law of one such employe for injuries sustained while thus engaged against an employer other than his own is limited by § 176.06, subd. 1, even though the hazard from which the injury arose was not Created as the result of the mutual engagement of the two groups of employes.
4. Where plaintiff testified that his trip to the rear of defendant's premises was for the purpose of checking merchandise in conjunction with the initial opening of defendant's store, and, further, that while thus engaged he opened a door on the premises and fell into an open areaway, thereby sustaining injuries, Held that plaintiff's described activity was part of his work in the performance of an enterprise common to his employer and to defendant in preparing the latter's store for its initial opening; hence, his right of recovery against defendant for such injuries is limited by § 176.06, subd. 1.
5. Court's order granting judgment notwithstanding the verdict had the effect of a finding of fact on the issue whether plaintiff's employer and defendant were mutually engaged in a common enterprise or in the accomplishment of the same or related purposes within the meaning of § 176.06, subd. 1.
William H. DeParcq, and Chester D. Johnson, Minneapolis, for appellant.
Dancer, Montague, Applequist & Lyons, Duluth, for respondent.
Action for personal injuries brought by plaintiff, Myron J. Volding, against defendant Roy M. Harnish, lessee of a store building at Cloquet in which he operated what is known as a 'Federated Store,' and defendant C. A. Carlson, a building contractor employed by Harnish to make improvements therein. The jury returned a verdict for plaintiff in the sum of $22,500 against Harnish only, and for convenience he will hereinafter be referred to as defendant. On July 21, 1950, the trial court made its order granting defendant's motion for judgment notwithstanding the verdict. This is an appeal from the judgment subsequently entered.
The accident occurred August 21, 1947, the day prior to defendant's initial opening of the Federal Store in Cloquet, when plaintiff fell through a door in the described building into the basement some nine feet below.
At the time of the accident, plaintiff was an employe of Butler Brothers, an Illinois corporation which engages in a wholesale mercantile business on a national scale. It maintains two divisions, whose functions are the establishment of retail stores for the sale of its products in various locations throughout the country. One such division, known as the 'Ben Franklin' division, procures the establishment of retail variety stores; while the other, known as the 'Federated' division, sponsors establishment of stores for the sale of its dry goods products. Plaintiff was operating manager of the Federated division.
Butler Brothers maintains no direct financial interest in the retail stores thus established, but does have a close relationship with the individual owners thereof. It enters into contracts with them under which they agree to handle Butler Brothers' products exclusively in exchange for franchises to such effect and the right to use the Ben Franklin of Federated Store name in connection with their respective stores; and it provides active aid and assistance for them in advertising and merchandising the products of Butler Brothers thus furnished.
During 1946, Butler Brothers made a survey of the area around Cloquet and determined that conditions there merited the establishment of a Federated Store in that city. It obtained a lease on certain business property there, and its representative then called upon defendant, who at that time conducted a Ben Franklin Store in Cloquet, and suggested to him that he also take over the Federated Store franchise. Defendant agreed and, after paying Butler Brothers $5,600 for services to be performed by the latter, on December 3, 1946, was granted a franchise to use the Federated Store name in Cloquet and an assignment of the lease above described. 1
Three stores were to occupy the leased premises. They were the Ben Franklin Store and the Federated Store to be operated by defendant, and an apparel shop to be operated by his wife. Considerable remodeling of the building became necessary by reason thereof. Pursuant to an arrangement with Butler Brothers, C. A. Carlson was employed by defendant to effect such remodeling and to furnish the labor and material in connection therewith.
Blueprints therefor furnished by Butler Brothers called for the construction of a freight chute from a loading platform adjacent to the rear wall of the building to the basement for the delivery of merchandise direct to the basement. An opening was made in the rear wall, and a door hung thereon for this purpose. Later, another opening was made in a wall within the structure also adjacent to the proposed freight chute and a door hung thereon. The latter opening was not called for in the original plans but was ordered by Butler Brothers and defendant, so that merchandise might be brought directly to the main floor from the receiving platform without first going to the basement.
Before the freight chute was constructed, the contractor was directed by Butler Brothers to leave this work and to take care of other necessary remodeling. On the day of the accident the two openings had been completed, and doors had been placed thereon which (the chute not having been constructed) opened onto an empty space above the basement floor some nine feet below.
Under the agreement, Butler Brothers were to furnish defendant with its services in equipping the store and preparing for its opening on August 22, 1947. Such services were to include the selection and arrangement of merchandise in the store and employes of Butler Brothers skilled in this phase of the work were sent to Cloquet prior to the opening to assist defendant's sales employes therein. It was in this connection that plaintiff was present the day of the accident. His duties were to check on this work, to ascertain whether the merchandise and displays were properly arranged, to determine whether additional merchandise was necessary, and, in general, to otherwise assist wherever possible.
Plaintiff had been so engaged for approximately an hour and a half before the accident occurred. He then turned toward the back of the store and proceeded to the door which opened onto the vacant space where the freight chute was to be constructed. He opened it, stepped into the void, and fell onto the concrete floor of the basement, thereby sustaining the injuries involved in this action.
At the close of the evidence, defendant's counsel moved for a directed verdict on the ground that it appeared as a matter of law that Butler Brothers and defendant were engaged in the furtherance of a common enterprise for the accomplishment of the same or related purposes in operation on defendant's premises when the injury was received; hence, that under M.S.A. § 176.06, subd. 1, plaintiff's common-law remedy against defendant was barred. 2 The denial of this motion was subsequently set forth by defendant as one of his grounds for judgment notwithstanding the verdict or for a new trial.
Neither counsel for plaintiff nor counsel for defendant requested that the court charge the jury on the issue of common enterprise or the accomplishment of the same or related purposes, as covered by § 176.06, subd. 1, and no instruction was given thereon.
In a memorandum attached to its order for judgment notwithstanding the verdict and made a part thereof, the trial court stated:
'It seems to the Court that the two employers, Butler Brothers and Harnish were engaged in the furtherance of a common enterprise within the meaning of the Statute, either in the ultimate objective of disposing of merchandise, or in the immediate, specific job of readying the store for business. Butler Brothers Company was doing more than selling and delivering merchandise or furnishing a service to Harnish. * * * (it) had a regular 'Store Opening' department, which, with a considerable staff of employees were engaged, together with Harnish's employees, in readying the store for the grand opening. Volding was manager of Butler's Federated Stores Department and it was in his line of duty that he was present in Harnish's store at the time. * * *
'* * * It seems to me that the employees of Butler Brothers and Harnish alike, in the work they were engaged in on the premises, were subject to the same risk. The duty that is claimed to have been violated was owing equally to both groups of employees. * * *
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