Edelston v. Builders and Remodelers, Inc.

229 N.W.2d 24 (1975)

Josephine EDELSTON, Widow of Merrill E. Edelston, Deceased Employee, Respondent, v. BUILDERS AND REMODELERS, INC., et al., Relators.

No. 45210.

Supreme Court of Minnesota.

May 2, 1975.

*25 Sahr, Kunert, Tambornino & Soshnik and John L. Tambornino, Minneapolis, for relators.

Samuel D. Finkelstein and Irving Juster, Minneapolis, for respondent.

Considered and decided by the court without oral argument.

PER CURIAM.

Relators seek review of a decision of the Workmen's Compensation Commission awarding benefits to respondent, widow of the deceased employee. They contend that the respondent is not entitled to these benefits because at the time her husband was killed, he was an independent contractor and not an employee of relator Builders and Remodelers, Inc. We affirm.

We have held that the existence or nonexistence of an employment relationship between two parties is a question of fact and, if reasonable inferences may be drawn to support either conclusion, the commission's finding must stand. Farnam v. Linden Hills Congregational Church, 276 Minn. 84, 149 N.W.2d 689 (1967).

The standards to be applied in determining whether one is an employee or an independent contractor were detailed in Guhlke v. Roberts Truck Lines, 268 Minn. 141, 143, 128 N.W.2d 324, 326 (1964), where we said:

"* * * [T]he factors applied in testing the relationship are: (1) The right to control the means and manner of performance; (2) the mode of payment; (3) the furnishing of material or tools; (4) the control of the premises where the work is done; and (5) the right of the employer to discharge. In determining whether the status is one of employee or independent contractor, the most important factor considered in light of the nature of the work involved is the right of the employer to control the means and manner of performance."

The commission found the requisite right to control the means and manner of performance in the unconditional right of Builders and Remodelers to terminate the employee's source of sales leads. That finding is consistent with our decision in Lundholm v. Beaucraft, Inc., 292 Minn. 501, 195 N.W.2d 580 (1972).

Relators argue that the solicitation agreement, which characterized the employee's relationship to Builders and Remodelers as that of an independent contractor and not as that of an employee, should be controlling. The nature of the relationship of the parties is to be ascertained, not from the label given to it by the parties themselves, but from the consequences which the law attached to their arrangements and to their conduct. Aleckson v. Kennedy Motor Sales Co., 238 Minn. 110, 55 N.W.2d 696 (1952); Elwell v. Fake, 264 Minn. 329, 119 N.W.2d 19 (1962).

Respondent is allowed $350 attorneys fees on this appeal.

Affirmed.