Duvick v. Industrial Commission

• Decision Date: 20 December 1963
• Citation: 22 Wis.2d 155,125 N.W.2d 356
• Parties: Arthur DUVICK, Plaintiff-Respondent, v. INDUSTRIAL COMMISSION of Wisconsin, et al., Appellants, Orbeck Brothers, Inc., a Wis. corporation, et al., Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 356

125 N.W.2d 356

22 Wis.2d 155

Arthur DUVICK, Plaintiff-Respondent, v. INDUSTRIAL COMMISSION of Wisconsin, et al., Appellants Orbeck Brothers, Inc., a Wis. corporation, et al Defendants-Respondents.

Supreme Court of Wisconsin.

Dec. 20, 1963.

George Thompson, Atty. Gen., and Gordon Samuelsen, Asst. Atty. Gen., Madison, for appellant Industrial Commission.

Schlotthauer, Jenswold, Reed & Studt, Madison, for appellant Threshermen's Mut. Ins. Co.

John G. Nestingen, Woodville, for plaintiff-respondent.

BROWN, Chief Justice.

Orbeck Bros., Inc. is a Wisconsin corporation organized to conduct a tavern business. Two hundred fifty shares of stock were authorized by the corporation's articles. One hundred twenty-eight shares were issued. One share each was issued to the corporation's officers, who were George Price, president, Hazel Seeman, vice-president, and Leonard Kado, secretary. These three persons constituted the board of directors and they remained the officers and directors at all times referred to herein. The remaining 125 shares issued were held by Alex Jacenko.

On August 20, 1958, Alex Jacenko and Martha Jacenko sold their entire interest in 'the business known as Orbeck Bros., Inc.', and their interest in all the corporation stock certificates to Arthur W. Duvick, Orel A. Duvick and Louis Tschann. On the same day Jacenko's 125 shares were transferred and reissued to Arthur Duvick. Forty shares which till then had not been issued to anyone, were issued to Louis Tschann but were cancelled thereafter. Reports made by the corporation to the secretary of state showed only 128 shares outstanding in March, 1958, and March, 1959. Price, Seeman, and Kado continued to be holders of one share each and at all times continued to be officers and directors.

Tschann appears to be a friend of Duvick's who accompanied him to Wisconsin to assist in the operation of the tavern. Both Duvick and Tschann were formerly residents of Minneapolis.

Both before and after the purchase and sale referred to, Orbeck Bros., Inc. was licensed to sell intoxicating liquor. It had complied with sec. 176.05(13), Stats., and had appointed Alex Jacenko its liquor license agent.

On August 20, 1958, a meeting of the stockholders of Orbeck Bros., Inc., was held. All stockholders were present and unanimously adopted a resolution making Arthur Duvick liquor license agent in place of Alex Jacenko, vesting him with the powers and responsibilities demanded of the agent by sec. 176.05(13), Stats.:

'Licenses to corporations; appointment of agents. No corporation organized under the laws of this state or of any other state or foreign country, shall be given a license to sell in any manner any intoxicating liquor unless such corporation shall have first appointed, in such manner as the commissioner of taxation shall by regulation prescribe, as agent, a citizen of the United States and shall have vested in him by properly authorized and executed written delegation full authority and control of the premises, described in the license of such corporation, and of the conduct of all business therein relative to intoxicating liquors as the licensee itself could in any way have and exercise if it were a natural person resident in the state, nor unless such agent is, with respect to his character, record and reputation, satisfactory to the commissioner. * * *'

Duvick consented to the appointment and the beverage division of the department of taxation approved it. Duvick began work in the tavern at once. At the hearing he described his activities as tending bar, hiring part time help, seeing to it that the place was clean. [Summarizing] 'I am more of a manager. * * * I was running the business for the Orbeck Corporation who were the stockholders. * * * Mr. Tschann and myself decided how much money would be drawn from the operation of the tavern. We fixed our own hours of work. We outlined the duties which we were to perform. We were responsible to no one except ourselves in the performance of those duties. No one could discharge me other than myself. I was subject to no one's direction but my own. In May or June of 1959 I left Spring Valley [site of the tavern] and returned to Minneapolis and left Tschann behind.'

It does not appear that the records of the beverage division of the department of taxation were called to Judge Wilkie's attention, but we take judicial notice of the records of the beverage division and observe that on June 17, 1959, the corporation appointed Louis Tschann its liquor license agent for Orbeck Bros., Inc. Tschann accepted the appointment on the same day and it was approved by the beverage division July 13, 1959. The division's record notes that Louis Tschann succeeded Arthur Duvick.

After an absence, the duration of which does not appear, Duvick came back to the tavern where, on November 13, 1959, he injured his back while stacking beer cases. The testimony in the Industrial Commission hearing tells us nothing about the terms or the circumstances of Duvick's resumption of activity in the tavern. It is clear only that he was then not liquor license agent for the corporation and thereby charged with an agent's duties.

The corporation withheld social security taxes on Duvick in 1958 and 1959 and paid those taxes.

The learned circuit judge determined that the corporate resolution naming Duvick the liquor license agent with duties prescribed by the agent by sec. 176.05(13), Stats., particularly the "* * * full authority and control of the premises * * * and of the conduct of all business therein relative to intoxicating liquors * * *" and "fermented malt beverages" was an express "contract of hire."

The question in these appeals is whether the Commission's finding can be reversed as a matter of law.

We do not quarrel with Judge Wilkie's view that the appointment to and acceptance of the position of liquor license agent constituted a contract of employment between Duvick and the corporation. But when Duvick was supplanted in that position in June, 1959, that contract and his status dependent on it was terminated. Tschann succeeded to the agent's duties, authority and status as an employe as a result of now being agent. Duvick, as he testified, returned to Minneapolis. There is nothing in he record upon which to base any contract of employment under which Duvick started work again in the tavern.

In what capacity then, did Duvick return to work in the tavern? The record does not tell us that the corporation or any of its officers asked him to come back. Apparently, he just walked in as of right as the sole stockholder and took over without permission or hindrance in running what he and everyone else considered to be essentially his own property. The inference is permissible and is supported by Duvick's representations in connection with a family insurance policy. He applied for the policy November 24, 1958, and in the application to the question 'Employed by?' he answered 'Self.' On October 2, 1959, he claimed benefits under the policy...