Ebner v. Indus. Comm'n

• Decision Date: 17 February 1948
• Citation: 252 Wis. 199,31 N.W.2d 172
• Parties: EBNER v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

252 Wis. 199

31 N.W.2d 172

EBNER

v.INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

Feb. 17, 1948.

Appeal from a judgment of the Circuit Court for Dane County; Alvin C. Reis, Circuit Judge.

Affirmed.

Action commenced by John Ebner against Oscar Brummeyer and the Industrial Commission of Wisconsin et al., to have set aside findings and an order by the commission denying the payment of compensation to Ebner. The commission's findings and order were affirmed by the circuit court's judgment, and Ebner appealed therefrom.

L. A. Tarrell, of Milwaukee, for appellant.

John E. Martin, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondent Industrial Comm.

Bloomquist & Iding, of Milwaukee, for respondents Brummeyer and others.

FRITZ, Justice.

The injury, on account of which John Ebner made his application to the Industrial Commission for the payment of workmen's compensation by Oscar Brummeyer, was sustained by Ebner on February 28, 1946, while engaged in performing a contract to do a certain job of plastering for Brummeyer, which he had agreed to perform under a contract with another person. In proceedings pursuant to Ebner's application an examiner of the Industrial Commission found and concluded that Ebner was for some time prior to February 28, 1946 a plastering contractor, and held himself out to the public as such contractor; that as such he was an employer subject to the Wisconsin Workmen's Compensation Act St.1945, § 102.01 et seq., and had insured his liability thereunder for the payment of workmen's compensation to his employees with a casualty insurance company; that on February 28, 1946, Ebner was performing work as a plastering contractor for Oscar Brummeyer, who also was such a contractor, and in performing said work Ebner used also his own employees and equipment on the job and was not subject to control by Brummeyer; that Ebner could perform the work as he determined it should be done, and Brummeyer did not exercise any control over the details thereof; and that therefore at the time of his injury Ebner was an independent contractor, and not an employee. Upon Ebner's petition for a review, the examiner's findings and order were affirmed by the Industrial Commission; and upon Ebner's appeal therefrom to the circuit court, the commission's findings and order dismissing Ebner's application for compensation were confirmed by the circuit court's judgment from which he then appealed. He contends here that the record does not sustain the examiner's and the commission's finding that at the time of his injury he was an independent contractor and not an employee; but that, on the contrary, the facts present a picture of a plasterer contractor hiring another plasterer to assist him in his work, and therefore a relationship of employee and employer existing between Ebner and Brummeyer.

Ebner's contention cannot be sustained. Whether, under the facts and circumstances established herein by evidence as to which there is no dispute in any material respect, Ebner was working as an employee or as an independent contractor at the time of his injury depends in this case largely on the facts proven in respect to the issue as to who had the right to control the details of his work. Here there is applicable again, as we stated in Hume v. Industrial Comm., 248 Wis. 5, 8, 20 N.W.2d 573, 574, ‘The principal test for determining the relationship, whether Pelky was an employee of Hume or an independent contractor, is who had the right to control the details of the work.’ When as here, there is evidence which the commission can consider credible and sufficient to warrant finding that Ebner had the right to control the details of his work while engaged in doing the plastering job in question, the commission's finding that he was not an employee at the time of the injury may not be disturbed on an appeal. As we said, in relation to the applicant for compensation under analogous circumstances in Plencner v. Industrial Comm., 249 Wis. 370, 374, 375, 24 N.W.2d 669, 671, ‘If there is any evidence that Plencner had the right to control the details of his work while repairing this sewer the commission's finding that he was not an employee at the time of the alleged injury is conclusive. (Citations.) * * * Whether Plencner was an employee or an independent contractor is a question of fact under all the evidence, to...