Green Valley Coop. Dairy Co. v. Indus. Comm'n

• Decision Date: 13 May 1947
• Citation: 250 Wis. 502,27 N.W.2d 454
• Parties: GREEN VALLEY COOPERATIVE DAIRY CO. et al. v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

250 Wis. 502

27 N.W.2d 454

GREEN VALLEY COOPERATIVE DAIRY CO. et al.

v.INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

May 13, 1947.

Appeal from a judgment of the Circuit Court for Dane County; Herman W. Sachtgen, Judge.

Affirmed.

Action brought by Green Valley Cooperative Dairy Company and its compensation insurer against the Industrial Commission and Alex J. Karlen for the review and vacation of an interlocutory order of the Commission which awarded compensation to be paid by plaintiffs to Karlen for injury sustained by him while rendering service as an employee for the Green Valley Cooperative Dairy Company. The circuit court confirmed the order and from judgment to that effect plaintiffs appealed. Alfred E. La France, of Racine, for appellants.

John E. Martin, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondents.

FRITZ, Justice.

The injury involved herein was sustained by Karlen on April 29, 1945, in moving a tub of butter fat for the Green Valley Cooperative Dairy Company (hereinafter called Dairy) in its cheese factory while at work there as a cheesemaker and in a managerial capacity in some respects for Dairy since January 1, 1940. Appellants contend there was no competent credible evidence to sustain finding that Karlen was an employee of Dairy; and that the findings do not support the Commission's order and award. Appellants claim Karlen was an independent contractor and not an employee of Dairy. On evidence taken in proceedings before an examiner of the Commission he found that Karlen is employed by Dairy as a cheesemaker, his pay being based on the per hundred weight of cheese manufactured by him; that Karlen has under his supervision and control the making of the cheese and in such operations hires what help is necessary and pays them out of the amount payable to him by Dairy for the manufacture of the cheese; that Dairy has no voice in the hiring of such help by Karlen and in his fixing of their wage; that the more milk brought to the factory, the more cheese can be made; that aside from the shareholders or patrons of Dairy, other farmers at times bring their milk to the factory and Karlen is at liberty to solicit patrons, but does not hold himself out to make cheese for others than Dairy; that in consequence of Karlen's injury on April 29, 1945, he could not carry on his ordinary duties and was required to hire help for seventeen weeks and two days; and that his net earnings for the work he performed for Dairy was $46.15 per week, and the extra help which he had to have during that period of disability required an expenditure on his part of $360, which entailed a forty-five per cent. wage loss for the period of his disability. On the facts thus found by the examiner he ordered Dairy and its insurer to pay compensation to Karlen; and on a petition for review the Commission affirmed the examiner's award.

In addition to the facts found by the examiner there was proof, as plaintiffs claim, to the following effect. If the cheese made by Karlen did not come up to the State Brand Class, there was deducted from the agreed price per hundred weight to be paid him the difference in the price between the type of cheese he produced and the price of the State Brand cheese; that milk brought to the factory by other farmers than the members of Dairy could be accepted or rejected by Karlen without consulting its officers; and that when he went to the hospital and physicians after the accident, because of his injury he hired another man and paid him to take his place while he was away, and he was not making as much money then as he made while he was on the job himself, but he was not making less than he paid the man. Furthermore, that Karlen had nothing to do with selling the cheese. His work was completed when it was manufactured, weighed and boxed and placed in the curing room. Dairy was only interested in getting as much good cheese out of the amount of milk that came into the factory as was possible. It was the business of Karlen to see that the best cheese possible was produced in the minimum time, for by such production he made the most money. As the trial court stated in its decision confirming the award, ‘the evidence * * * presents a border line case. Viewed from one angle, the evidence and inferences that can be drawn would meet the primary test on which a conclusion could be reached that Karlen was an independent contractor; applying other inferences to the same evidence, the conclusion of the commission that he was an employee could be likewise reached. Coupled with the presumption that arises in favor of the injured person that he is an employee rather than an independent contractor, as stated in Montello Granite Co. v. Industrial Comm., 227 Wis. 170, 278 N.W. 391 * * * this court cannot say that the commission erred in its conclusion. But, even if the commission erred in that determination and Karlen was an independent contractor, nevertheless, he becomes an employee by virtue of the provisions of subsection 8 of section 102.07 of the statutes. The examiner in his findings referred to this subsection and the commission having adopted his findings, it becomes incorporated in its decision.’

The evidence fairly admitted of the findings of fact and inferences drawn therefrom as stated by the examiner and affirmed by the Commission. As the facts thus established are virtually undisputed, but may permit of drawing different inferences, there is presented a question of fact and not a question of law (Tiffany v. Industrial Comm., 225 Wis. 187, 190, 273 N.W. 519: Eckhardt v. Industrial Comm., 242 Wis. 325, 329, 7 N.W.2d 841), and consequently the examiner's and Commission's findings based on logical inferences from those facts are entitled to the same conclusiveness as findings based on disputed facts. Scandrett v. Industrial Comm., 235 Wis. 1, 5, 6, 291 N.W. 845;Voll v. Industrial Comm., 239 Wis. 71, 81, 300 N.W. 772; Tiffany v. Industrial Comm., supra. When Karlen was injured he was engaged in performing services for Dairy in making cheese for it in its factory with its equipment and the assistance of two other persons who, under his directions and supervision, were likewise performing services for Dairy. Consequently there is applicable to Karlen and Dairy the statement in Montello Granite Co. v. Industrial Comm., 227 Wis. 170, 183, 278 N.W. 391, 397,...