Much of what is said in the majority opinion would be unanswerable if we had the fact-finding function. Our review is limited to determining whether or not there is any evidence or any inference permissible therefrom to sustain the finding of the commission. Jeffers v. Borgen Chevrolet Co. 199 Minn. 348,272 N.W. 172; Bronson *Page 538 v. National Battery Broadcasting Co. Inc. 200 Minn. 237,273 N.W. 681; Ledoux v. Joncas, 163 Minn. 498, 204 N.W. 635.
1. Of course there can be no liability unless there was an employment. In some of the cases we speak about the right of control as being a test by which to determine if the relation exists in a particular case. In a certain sense this is getting the cart before the horse. The right of control flows from the relationship. There can be no right of control unless the relation of employer and employe actually exists. All the incidents of employer and employee result from the relation. But if we find the incidents in the particular case which normally exist only where there is a contract of employment, then it seems a fair inference that such a contract actually exists. Whether such inferences should be drawn is not for us but for the commission. We can only say that the facts exist from which such an inference may be drawn. In this case the contract contemplated that Ritchie would necessarily have to employ others to assist him, from which an inference might be drawn that employes would be brought upon the premises to render services to relators. The fact that the services were menial in character and rendered directly to relators would justify some inference of a right of control. Wass v. Bracker Construction Co. 185 Minn. 70, 240 N.W. 464. In this case there is some evidence that the relators actually exercised some control, so that we have not only the right of control but the fact of control. Olson v. Eck's Homemade Sausage Co.194 Minn. 458, 261 N.W. 3. What inferences should be drawn from the method of payment employed in this case is for the commission and not for us as a matter of law. It appears that payment in the first instance was made by relators' agent, Cathcart Maxfield, Inc., and it stands undisputed that this firm was not at any time the agent of Ritchie. The wages were paid by this firm as the agent of relators. It is true that subsequently the amount paid was charged to Ritchie and an adjustment made. But ordinarily payments are not made by one on behalf of another except as the latter's agent. Whether the reimbursement of relators by Ritchie was because of his contract or for other reasons was a question of fact to be determined by the commission. *Page 539 Upon all the evidence, it seems that numerous inferences of the existence of employment may be drawn from the existence of facts which would exist only in a case in which there was an actual employment.
2. Whether a person is engaged in a business in a particular case is a question of fact. We clearly indicated in Sink v. Pharaoh, 170 Minn. 137, 212 N.W. 192, 50 A.L.R. 1173, that a person may embark in the owning or letting of property so that it would result in a business or occupation and that a person might have more than one business or occupation at the same time; and in Billmayer v. Sanford, 177 Minn. 465, 466,225 N.W. 426, 427, we held that the renting of property "may reach such proportions as to require an affirmative conclusion [that is, it may amount to a business], but this case does not seem to be such. Each case must rest upon, its own facts." Whether the owning, operating, and leasing of a 15-flat building, furnishing heat, a janitor and other services to tenants, has reached the proportions of a business enterprise is a question of fact. Certainly the line must be drawn somewhere, and where, as here, the enterprise has all the earmarks of a commercial undertaking, it seems that it should be for the commission and not us to determine the fact. We have held that owning one or more pieces of property and renting the same out to tenants is not a business or occupation of the owner. In State ex rel. Lennon v. District Court, 138 Minn. 103, 106, 164 N.W. 366,368, we held that the renting of a farm by the owner to a tenant was not a business or occupation within the meaning of the statute and that a business, trade, or occupation of a person refers "to that branch of the world's activities wherein he expends his usual everyday efforts to gain a livelihood." In Sink v. Pharaoh, 170 Minn. 137, 212 N.W. 192,50 A.L.R. 1173, we held that ownership of one small house rented out by the owner did not constitute a business or occupation. In Billmayer v. Sanford, 177 Minn. 465, 225 N.W. 426, we held that the ownership of four houses rented out to eight or nine tenants did not constitute a business or occupation. But in Sink v. Pharaoh, 170 Minn. 137, 212 N.W. 192, 50 A.L.R. 1173, at p. 139, we said: *Page 540
"We can well conceive that a person may embark in the owning and letting of houses so that it results in a business or occupation. * * * True, a person may engage in more than one business or be in a profession and a business at the same time."
In this case the properties were two apartment buildings containing 15 apartments, one of which was occupied by the janitor and the other 14 leased to tenants under an arrangement whereby, in addition to the renting of the properties, the relators were to furnish heat, repairs, and various services. The relators' ancestor operated these properties as a commercial venture, from which she received a substantial income, and the relators continued to operate them in the same manner. The finding of the commission is sustained by reason of the fact that it appears that the properties were owned and operated as a business venture and not simply as an investment from which the relators received an income. See Keegan v. Keegan, 194 Minn. 261, 260 N.W. 318, in which owners of an apartment building were held liable for workmen's compensation. The fact that relators were housewives also does not preclude the finding made by the commission. Sink v. Pharaoh,supra.
Quite contrary to what is held in the majority opinion, Billmayer v. Sanford and our other decisions have not foreclosed our holding that the commission may find that relators were engaged in a business. The rule that the construction of a statute becomes a part thereof so as to bind the court in future cases has no application here. The construction which we placed upon the statute in Sink v. Pharaoh and Billmayer v. Sanford left the question wide open for decision in each particular case, whether the owning and letting of property had reached such proportions as to be held a business or occupation of the owner. Quite contrary to our prior decisions, we now hold that this cannot be done. Our prior decisions, if it be conceded they were part of the statute, provided for the adaptation of the statute to each particular case. The decision in the instant case forecloses that right. It will require legislative action to permit a holding that the owning, operating, and receiving income *Page 541 from residential or apartment properties is in fact a business or occupation of the owner.
The authorities from other jurisdictions are divided. If we follow Sink v. Pharaoh and Billmayer v. Sanford, we would be bound to reject the rule of Storrs v. Industrial Comm. 285 Ill. 595,121 N.E. 267, and adopt the rule in Nelson v. Stukey,89 Mont. 277, 300 P. 287, 78 A.L.R. 483. Some of the decisions cited have no value here as authority because they are opposed to the principles which we have already announced in other cases. Under the rules which we have announced in many cases, the decision of the commission should be affirmed whether we would have found the facts as the commission did or otherwise.