Badger Furniture Co. v. Indus. Comm'n

• Decision Date: 05 November 1929
• Citation: 227 N.W. 288,200 Wis. 127
• Parties: BADGER FURNITURE CO. ET AL. v. INDUSTRIAL COMMISSION ET AL.
• Court: Wisconsin Supreme Court

200 Wis. 127

227 N.W. 288

BADGER FURNITURE CO. ET AL.

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

Nov. 5, 1929.

Appeal from a judgment of the Circuit Court for Dane County; A. G. Zimmerman, Judge. Affirmed.

Action by the Badger Furniture Company and another, against the Industrial Commission of Wisconsin and Julia Eva Brisbane, to review an award of compensation under the Workmen's Compensation Act, for the death of John Brisbane. From a judgment setting aside the award, defendants appeal. Affirmed.--[By Editorial Staff.]

Action begun June 27, 1928; judgment entered December 29, 1928. This is an appeal by the defendants from a judgment setting aside an award of the Industrial Commission.John W. Reynolds, Atty. Gen., Mortimer Levitan and Suel O. Arnold, Asst. Attys. Gen., and Olin & Butler, of Madison, for appellants.

Richmond, Jackman, Wilkie & Toebaas, of Madison, for respondents.

CROWNHART, J.

John Brisbane, under contract with the Badger Furniture Company, to sell its furniture on commission, was accidentally killed in a collision between his automobile and an engine on the railroad track, near Sun Prairie, Dane county, December 8, 1927. His widow, Julia Brisbane, one of the defendants and appellants, made a claim before the Industrial Commission for compensation under the Compensation Act. The commission held a hearing and made its findings of fact, and awarded compensation to the claimant. The plaintiffs, Badger Furniture Company and its insurance carrier, brought an action in the circuit court to reviewthe award of the Industrial Commission. The circuit court set aside the award, and the Industrial Commission appealed from the judgment of the circuit court.

The facts are not in dispute, nor are the inferences therefrom in doubt. Mr. Brisbane was a commercial salesman. He contracted with the Badger Furniture Company in February or early March, 1927, to sell furniture for said company on a straight commission basis. He was to pay his own expenses and had no drawing account. He was at liberty to sell in Wisconsin, at any place or time, in his own discretion. He furnished his own car. He made no daily report to his company. The contract was subsequently modified, to give certain territory in the northeastern part of the state to another agent; otherwise, the contract was the same at the time of his death as when first made. The appellants contend that, from the course of conduct between the parties during the period that Brisbane acted under the contract, the Badger Furniture Company exercised such control and direction over Brisbane as to make him an employee, rather than an independent contractor.

In Miller & Rose v. Rich, 195 Wis. 468, 218 N. W. 716, 717, we discussed the meaning of the terms “employee” and “independent contractor,” as those terms are used in the Compensation Act. We there held that: “The employee generally is subject to direction and control by the employer, as to his work and the manner of execution. The independent contractor undertakes to do the job, reserving to himself independence of action as to execution, except as designated in the contract. There may be cases where definition is difficult, but application of the principles to the facts is usually fairly plain.”

[1] Whether or not a person is an independent contractor or a servant depends upon the right of control by the principal over the person engaged to do the work. The mere fact that the principal exercises such control is not significant, if he has no right of control. The test is to be determined by the contract, not by the course of conduct. However, when the terms of the contract are in doubt, the course of conduct of the parties in the execution of the contract may be considered as an aid in construing the contract; but, when the contract is determined, the right of control by the principal over the person doing the work is generally considered the important test. Note, 19 Ann. Cas. 3; 14 Ruling Case Law, 67; Madix v. Hochgreve Brewing Co., 154 Wis. 448, 143 N. W. 189;James v. Tobin-Sutton Co., 182 Wis. 36, 195 N. W. 848, 29 A. L. R. 457;Machae v. Fellenz Coal & Dock Co., 183 Wis. 44, 197 N. W. 198;Ronning v. Industrial Comm., 185 Wis. 384, 200 N. W. 652;Buchholz v. Breitbach, 193 Wis. 224, 213 N. W. 329;C. R. Meyer & Sons Co. v. Industrial Commission, 194 Wis. 615, 217 N. W. 408;Miller & Rose v. Rich, 195 Wis. 468, 218 N. W. 716; Kneeland-McLurg Lumber Co. v. Industrial Comm., 196 Wis. 402, 220 N. W. 199; Medford L. Co. v. Industrial Comm., 197 Wis. 35, 221 N. W. 390.

[2][3] In reaching a conclusion, of course, there are other things to be considered besides the question of control, to wit: The nature of the business or occupation; which party furnishes the instrumentalities and tools; the place of work; the time of employment; the method of payment; and the intent of the parties to the contract. In this case the contract was oral, and we have only the testimony of one party to the contract; hence it is important to consider the course of conduct of the parties to determine the control actually exercised by the Badger Furniture Company in construing the contract. Brisbane worked for the Badger Furniture Company from the date of the contract until the time of his death, a period of nine months, and during that time the only evidence to indicate that the respondent had exercised any control over Brisbane is shown by four letters from the Badger Furniture Company to Brisbane.

One, under date of March 22, 1927, contains the following:

“* * * The writer gave you a list of the towns he made two weeks ago, and most of them have only one dealer in a town, and in Madison the writer only called on the Imperial Hsfg. Company. If the roads are...