dissenting.
I am unable to concur in the majority opinion in this case. It is an action to recover for workman’s compensation under the following circumstances:
The claimant Cole has been operating a machine shop at Cambridge since 1917. His shop is equipped with lathes, raddle drills, dies, hack and power saws, and small tools of various sorts. For the past ten years he has operated a portable acetylene welding outfit. He does repair work in his line as a machinist as well as an acetylene welder for any one who wants work of that character.
The defendants, Thomas J. Minniek and Harvey E. Minniek, are partners in Cambridge under the name of Minniek Hardware Company. They are retail dealers in hardware, farm machinery and other lines of merchandise. They have no facilities for repairing broken parts of machinery nor are they equipped to do acetylene welding. Their place of business is situated at a distance of more than two blocks from Cole’s shop. When the Min-*876nicks opened their store about five years ago, Cole, knowing that they would occasionally want repair work and welding, solicited their business, and they orally agreed to give him all the work they had in his line and were to pay him $1 an hour for-the time spent in working for them, the same as he received from other customers of his shop. All of the work excepting occasionally the welding was to be done at the Cole shop. Cole had a portable acetylene welding outfit, and he agreed, when it was necessary, to take this any place where work of that sort was to be done and to give immediate and prompt service. Cole did all the work that defendants had to do and he also traded with them in their store at intervals, balancing accounts. When Minnicks sent customers over to Cole to have their repair work done, sometimes it was paid direct by the customer and sometimes it was handled by Minnicks through their accounts between the parties. The quantity of work varied greatly. Cole might do two or three jobs in one day and then again he might do nothing for them for a week or sometimes a month. He worked for other people and did the same kind of work and received pay at the same rate.
The terms of the contract were oral and very informal. Cole employed no help and did all his own work. He testified that the only conversation with Minnick was as follows: “We were talking about his going into business, and I says: ‘You will have work along my line, and I would like to have your work along my line as machinist and welder.’ And he says: ‘Sure, I will give it to you; we haye not got so awfully much work, but I will give you what', we ha,ve.’ ”
On.iDctp^ej:; 6, 1930, Minnick took a tank to Cole’s place of business ón a truck belonging to the defendants and left it on .the truck in the street just north of the entrance to. his shop. Cole had theretofore done a similar job for the defendants and Minnick told him to put the nipple in the same distance from the bottom of the tank and in the same manner as he had done in the other job. *877Minnick drove into the country and was not present when Cole started to work. In the course of the work an explosion occurred injuring Cole very seriously.
The question to be determined in this case is whether the relation between Cole and the Minnicks is that of employer and employee or whether the claimant was an independent contractor.
Subdivision 4, sec. 48-115, Comp. St. 1929, in defining what is not an employee or workman under our compensation act, provides: “It shall not be construed to include any person to whom articles and materials are given to be made up, cleaned, washed, finished, repaired or adapted for sale in the worker’s own home or on other premises not under the control or management of the employer, unless the employee is required to perform the work at a place designated by the employer.”
It seems to me this section of the statute covers the present situation exactly. Cole was the owner and operator of a machine shop; the articles and materials were given to be made up and repaired in his own shop, not under the control or management of the Minnicks, and he was not required to perform the work at any other place; and under such circumstance he should be held to be an independent contractor, engaged in such work with the public generally, and the defendant’s work was received and handled the same as the work of any other customer.
Cole contends that the Minnicks superintended and directed the work which Cole was to do, but the evidence shows that they were not skilled in this line of work, had no equipment, and left the matter entirely to Cole. Cole also claimed that he was an employee because he agreed to give them a preference, but the evidence shows his shop was open to the general public for services in this line of business but such preference as a claim was only incidental to his work and merely is rendered to increase his business. An independent artisan could not under such an agreement be considered as an employee within *878the intendment of the compensation statute. He could claim an artisan’s lien under section 52-201, Comp. St. 1929.
The facts involved in the case of Cobb v. Long Bell Lumber Co., 16 La. App. 297, are very similar to the facts in the instant case. There the plaintiff, who was running a blacksmith shop fully equipped to shoe horses and mules, entered into a contract with the defendant company to have its mules shod at the barn of the defendant for the same price he was charging at his shop for his customers for similar services, in consideration of the offer that plaintiff would get a regular job to shoe all of its mules. It was held, after a broad discussion of all of the issues raised, that the plaintiff was an independent contractor.
The cases cited in the majority opinion are not strictly in point, as it is not shown in any of them that the work was performed at the home or on the premises of the claimants. In the case of Davis v. Lincoln County, 117 Neb. 148, Davis was employed by the authorities of Lincoln county, Nebraska, to care for, supervise and perform necessary services in connection with the maintenance and protection of three bridges across the Platte river, situate in said county, for such repairs and protection as might from time to time arise. The only question involved in that case was the question of the county being liable for continuous employment or part employment, or whether or not the plaintiff was an employee at the time he was injured.
I respectfully submit that under the statute the claimant Cole was an independent contractor in this case, and that the case should be reversed and dismissed.
Day, J., joins in dissent.