Habrich v. Bent

• Decision Date: 03 December 1929
• Citation: 227 N.W. 877,200 Wis. 248
• Parties: HABRICH ET AL. v. BENT ET AL.
• Court: Wisconsin Supreme Court

200 Wis. 248

227 N.W. 877

HABRICH ET AL.

v.BENT ET AL.

Supreme Court of Wisconsin.

Dec. 3, 1929.

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

Action commenced on the 28th day of May, 1928, by Joe Habrich and Ætna Life Insurance Company, plaintiffs, against Etta Bent, Forest Lake, Inc., and Industrial Commission of Wisconsin, defendants, to review an award of the Industrial Commission. From a judgment entered on the 11th day of May, 1929, affirming the award of the commission, the plaintiffs bring this appeal.Quarles, Spence & Quarles, of Milwaukee (Arthur B. Doe, of Milwaukee, of counsel), for appellants.

John W. Reynolds, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondents.

OWEN, J.

On the 2d day of June, 1927, one Walter Bent, while in the service of Joe Habrich, sustained injuries while blasting, resulting in his death. The Industrial Commission made an award in favor of his widow, Etta Bent, under the provisions of the Workmen's Compensation Act (St. 1927, §§ 102.01-102.41), and this action was brought to set aside the award. That at the time of the accident the deceased was performing services for Joe Habrich, the plaintiff, is conceded. But the disputed question, and the question involved upon this appeal, is whether he was rendering such services as an employé or as an independent contractor.

It appears that Forest Lake, Inc., owned the land surrounding Forest Lake, in Vilas county, Wis., which had been platted into shore lots. Joe Habrich, the plaintiff, was general manager of Forest Lake, Inc. He entered into a contract with Forest Lake, Inc., to build a road around the lake, and three roads leading from this main road to the shore of the lake at specified points. He sublet the contract of building the main road to Walter Bent, who was a contractor and was equipped with heavy machinery necessary for the building of roads through timber country. Habrich undertook to build the branch roads himself. This was in the summer of 1926. Bent proceeded with the construction of the main road, and Habrich with the construction of the branch roads. Habrich did not complete the construction of the branch roads during the season of 1926. He did not have the machinery and equipment necessary to perform the heavy work encountered in the construction of these roads. Bent had a crew of men and the equipment necessary to do this heavy work. Habrich arranged with Bent for the use of his crew and caterpillar tractor for the completion of these branch roads. The arrangement was casual and informal. According to Habrich's testimony, he “asked Bent if he would go in with his men and machinery and finish these branch roads for him. It was not necessary for me to have any supervision as to how it was built, because he was considered a better man than I was, as far as the actual building goes. It wasn't I knew that he was an expert in building roads, that I wanted him to go in and build the roads; it was because he was there with his equipment. He was actually in control and supervised the work. That was because I felt that he knew more about building roads than I did. That was my only reason. As far as paying Mr. Bent for the men, I don't think anything was said. In other words, the wages are about the same up there and I understood them to be $4.00 a day for the men; $8.00 that is what everybody charged for a team and driver, and the Holt (tractor) was supposed to be $35 with two men and I think he told me the plows and scrapers, well, about a dollar a day for the use of them. And so with that understanding Mr. Bent went in to work on the side roads. I believe it was within my power to discharge him and his crew any day I wanted to and hire somebody else. In my own mind I thought I was the boss. I felt I had a right to discharge them at any time. While he was building the point roads I went in there and gave orders as to what I wanted done by the men. During the spring of 1927 I went out there when Mr. Bent wasn't there when he was not on the job and gave orders to the crew as to what to do, and I felt I was within my rights. In my mind I was paying these men for their work by the day.” He further testified directly that Bent was working for him. This work had been going on about 10 days when the accident resulting in the death of Bent occurred. After the death of Bent, Habrich paid the men whom Bent had brought onto the job in accordance with their time as furnished by Mrs. Bent. At the time of the hearing he had not settled with Mrs. Bent or with the estate of Walter Bent, for the reason that there was an unadjusted balance between them carried over from the operations of the previous year, and no agreement had been reached between them concerning the amount which Habrich was owing to the estate of Walter Bent.

It appears that it had been customary for Habrich to keep an individual account of the time of the men which he had personally employed in constructing these branch roads. The time of the men which Bent brought onto the job was not thus kept. Their time was kept by Bent. This custom had originated during the year 1926 when Bent had rendered similar service to Habrich. Bent would render Habrich a bill for the amount coming to himself as well as the men. Habrich would give Bent a check to cover the amount, and Bent would pay the men. However, during the season of 1927...