A review of subsequent authorities which reflect the development of the law applied to cases dealing with injuries to workmen who use their own motor vehicles in the performance of work for others indicates that our court has always looked behind the form of the working arrangement to find the true essence of the relationship. In Barker v. Bemidji Wood Products Co. 184 Minn. 366, 238 N.W. 692, the workman owned a truck which he used to transport logs to the defendant's plant. He received an agreed price per cord for hauling. Although he did this work with some regularity, it was not constant. The defendant's employees helped the workman to load his truck, and he was instructed with reference to deliveries.
The absence of profit to the worker upon the job upon the work of others employed on it and the fact that the sum paid to him is wages and not profits are indications that he is an employee rather than an independent contractor. 71 CJ 476; Thompson v. Twiss, supra; Morgannelli's Estate v. City of Derby, 105 Conn. 545, 135 A. 911; Barker v. Bemidji Wood Products Co. 184 Minn. 366, 238 N.W. 692. Messer "was getting wages for his work; not making profits on a contract." Barker v. Bemidji Wood Products Co. 184 Minn at p 370, 238 NW at p 693. "His time belonged to his employer, and he was entitled to be paid irrespective of results."
6. As we see it, there appears to be no question but that contractual relations existed between the boys and Rev. Conover, acting for the church. No hard-and-fast rule has been laid down by which employee-employer or independent contractor status can be determined. As stated by this court in Barker v. Bemidji Wood Products Co. 184 Minn. 366, 368, 238 N.W. 692, 693, 7 W. C. D. 50, 51, "One case may be clearly that of employer and employe; another clearly of independent contractor; and another may be perplexing and uncertain and involve a question of fact." While a definition has not been attempted applicable to all situations, this court in Lemkuhl v. Clark, 209 Minn. 276, 277, 296 N.W. 28, 29, 11 W. C. D. 397, 398, laid down the following rule as a guide:
Wass v. Bracker Const. Co. 185 Minn. 70, 72, 240 N.W. 464, 465. Barker v. Bemidji Wood Products Co. 184 Minn. 366, 370, 238 N.W. 692, 693. Herron v. Coolsaet Bros. 158 Minn. 522, 527, 198 N.W. 134, 136.
Geerdes v. J. R. Watkins Co. 258 Minn. 254, 103 N.W.2d 641; Moorhead v. Grassle, 254 Minn. 103, 93 N.W.2d 678; Christopherson v. Security State Bank, 256 Minn. 191, 97 N.W.2d 649; Rosvold v. Independent Consol. School Dist. No. 102, 251 Minn. 297, 87 N.W.2d 646; Koktavy v. City of New Prague, 246 Minn. 550, 75 N.W.2d 774; Hansen v. Adent, 238 Minn. 540, 57 N.W.2d 681; Fahey v. Terp, 235 Minn. 432, 51 N.W.2d 273; Restatement, Agency (2 ed.) § 220. See, Korthuis v. Soderling Sons, 218 Minn. 342, 16 N.W.2d 285 (employee used his own truck); Dahnert v. Township of Otisco, 196 Minn. 478, 265 N.W. 291 (truck); Olson v. Eck's Homemade Sausage Co. 194 Minn. 458, 261 N.W. 3 (automobile); Anderson v. Coca Cola Bottling Co. 190 Minn. 125, 251 N.W. 3 (truck); Barker v. Bemidji Wood Products Co. 184 Minn. 366, 238 N.W. 692 (truck); Rouse v. Town of Bird Island, 169 Minn. 367, 211 N.W. 327 (team and wagon). Applying the rule that the findings of the commission are entitled to great weight and that this court will not disturb them unless they are manifestly contrary to the evidence, we are necessarily led to the conclusion that the award must be affirmed. From the facts already stated bearing upon the employer-employee relationship it is evident that Pettis was not an independent contractor, and we do not feel a further discussion of the evidence is necessary to demonstrate that Pettis at the time of the accident was engaged in performing usual and ordinary duties involved in the conduct of Harken's regular business.
1. The sole question presented to us is whether or not respondent was an employe of Brehmer. No definition of the relationship of employer and employe has been formulated which furnishes an easy solution for each particular case. As stated in Barker v. Bemidji Wood Products Co. 184 Minn. 366, 368, 238 N.W. 692, 693: "One case may be clearly that of employer and employe; another clearly of independent contractor; and another may be perplexing and uncertain and involve a question of fact." Prior borderline cases involving this issue were cited and discussed therein.
Another test is whether either of the parties possesses the right to terminate the services at will without incurring liability to the other, this embracing, of course, the right of the employer at any time to discharge the party performing the work, an affirmative answer establishing the status of master and servant. Burchett v. Department of Labor Industries, 146 Wn., 85, 261 P. 802, 263 P. 746: Press Publishing Co. v. Industrial Accident Commission, 190 Cal. 114, 210 P. 820; Industrial Commission v. Bonfils, 78 Colo. 306, 241 P. 735; Barker v. Benidji Wood Products Co., 184 Minn. 366, 238 N.W. 692; Aisenberg v. C. F. Adams Co., 95 Conn. 419, 111 A. 591; 71 C. J. 460, and cases cited; Burruss v. B. M. C. Logging Co., 38 N.M. 254, 31 P.2d 263."
Another test is whether either of the parties possesses the right to terminate the services at will without incurring liability to the other, this embracing, of course, the right of the employer at any time to discharge the party performing the work, an affirmative answer establishing the status of master and servant. Burchett v. Department of Labor Industries, 146 Wn. 85, 261 P. 802; Press Publishing Co. v. Industrial Accident Commission, 190 Cal. 114, 210 P. 820; Industrial Commission v. Bonfils, 78 Colo. 306, 241 P. 735; Barker v. Bemidji Wood Products Co., 184 Minn. 366, 238 N.W. 692; Aisenberg v. C.F. Adams Co., 95 Conn. 419, 111 A. 591; 71 C.J. 460, and cases cited; Barruss v. B.M.C. Logging Co., 38 N. Mex. 254, 31 P.2d 263. Some of the other matters looked to by the courts in aid of their determination of the problem are the manner in which the compensation for the work done is paid, that is, whether it is based upon time or piece, the workman being frequently regarded in such case as a servant, while where it is fixed as a lump sum for the task, the obligations of an independent contractor are imposed upon him; the furnishing of teams, wagons or tools by the employer or the workman, 71 C.J. 767 and cited cases; 42 A.L.R. 620 note; 43 A.L.R. 1318; and the right of the workman to begin or stop work as he pleases, involving the privilege of working on such days as he may choose, 71 C.J. 470 and cases listed; 42 A.L.R. 621 note; 43 A.L.R. 1318 note. As phases of control or right of control may be mentioned the factors: the place where the work is to be performed,
Lange v. American Spawn Co. 194 Minn. 342, 343, 260 N.W. 298. In Barker v. Bemidji Wood Products Co. 184 Minn. 366, 238 N.W. 692, the cases upon this subject are discussed. It was there said ( 184 Minn. 368): "The case presents the question whether the plaintiff was an employe of the defendant or an independent contractor.
The strongest case for respondent is Cardinal v. Prudential Ins. Co. 186 Minn. 534, 243 N.W. 706. In Barker v. Bemidji W. P. Co. 184 Minn. 366, 238 N.W. 692, our prior borderline cases are cited and attention called thereto. We think respondent here is more clearly an independent contractor than anyone who, in the last named case, was cited as an example of such. Here there was a definite agreement to do a job for a set price, the job including both work and the required material, with no understanding as to the price of either separately.