(dissenting).
This is a case where the referee has found that decedent was not an employee of Brechet & Richter but was an employee of Albert Melcher. This finding of fact was unanimously affirmed by the Workmen’s Compensation Commission which, in addition, *277denied leave to take further testimony. Both the referee and the commission referred to Guhlke v. Roberts Truck Lines, 268 Minn. 141, 128 N. W. (2d) 324, and Tretter v. Dart Transit Co. 271 Minn. 131, 135 N. W. (2d) 484, in their memoranda. The majority now departs from the long-standing rule that we will not review findings of fact by the Workmen’s Compensation Commission if there is any evidence to sustain them. It is apparent that the majority is motivated largely by the fact the actual employer, Melcher, is uninsured and the respondent, Brechet & Richter, with whom Melcher contracted, is insured.
This case is unlike Lindbery v. J. A. Danens & Son, Inc. 266 Minn. 420, 123 N. W. (2d) 695, where the decedent was dealing directly with defendant. Whatever may have been the relationship in Lindbery, it was created between the two principal parties. More significantly, the decedent driver was there paid by the hour in much the same manner as other employees. In the instant case, on the other hand, decedent dealt with Brechet & Richter only briefly during an interval when Melcher had sold decedent his truck. The remainder of the time and at the time of his death decedent was Melcher’s employee. Melcher hired him and paid him, and at the beginning when there were insufficient funds available to Melcher decedent went unpaid. I am at a loss to understand how Melcher by his dealings with decedent imposed upon Brechet & Richter a relationship with decedent which now we suggest rises to the dignity of employer and employee. Brechet & Richter had absolutely no control over decedent and no right to terminate his employment. Those powers were vested entirely in Melcher.
I fail to see how either the referee or the commission misplaced reliance on the Guhlke and Tretter cases. In Guhlke, we said (268 Minn. 146, 128 N. W. [2d] 327):
“* * * Finally, while it is no doubt true that Doughboy, as the principal source of Roberts’ trucking business, was in a position to exert considerable influence with respect to the avail*278ability of the truck tractor and semitrailers owned by Roberts, the quality of personnel employed by this concern, and the time and order of delivery, we do not feel that this fact is a sufficient basis for a finding of joint employment.”
There, as here, we did not find the contracting defendant’s control over decedent’s employment enough reason to create an employer and employee relationship between the shipper and the decedent driver. In Tretter, as in Lindbery, the decedent was the owner of the equipment and was not, as here, the employee of the owner. There we set forth the elements which persuaded us that the decedent was an independent contractor in the following language (271 Minn. 134, 135 N. W. [2d] 486):
“In measuring the facts in this case by the foregoing rule, it may be said that numerous factors which appear in the record identify the decedent as an independent contractor rather than an employee. He owned his own equipment which represented a substantial financial outlay; he leased it to the carrier. In the operation of it, he paid for its maintenance including oil and gasoline, carried his own collision insurance, and was compensated on the basis of a percentage of the tariff rather than on a wage scale. Social security tax was not withheld by the transportation company, nor did it withhold income tax. He filed his own tax returns as one engaged in an independent business. He was free to reject or accept loads for transportation as he desired. At all times the tractor was under his control.”
If in the Tretter case decedent was not an employee, certainly this decedent, who was one step removed, cannot be found an employee as a matter of law.
. This is a case where the death out of which this claim arises occurred almost 10 years ago, the claim was not asserted for almost 4 years, a unanimous commission has affirmed the referee in a finding of fact with respect to the relationship of the parties, and the matter should be laid to rest.