Henry Haertel Serv., Inc. v. Indus. Comm'n

• Decision Date: 09 May 1933
• Parties: HENRY HAERTEL SERVICE, INC., ET AL. v. INDUSTRIAL COMMISSION.
• Court: Wisconsin Supreme Court

211 Wis. 455

248 N.W. 430

HENRY HAERTEL SERVICE, INC., ET AL.

v.INDUSTRIAL COMMISSION.

Supreme Court of Wisconsin.

May 9, 1933.

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

Action by the Henry Haertel Service, Inc., and another against the Industrial Commission, to review an award of workmen's compensation in favor of certain heirs of Frank Belknap. From a judgment confirming the award, plaintiffs appeal.--[By Editorial Staff.]

Reversed, with directions.

The Industrial Commission made its award requiring the plaintiffs to pay death benefits to certain heirs of Frank Belknap as partial dependents, and to pay $1,600 to the state of Wisconsin because of the accidental death of Frank Belknap while in the employ of Henry Haertel, Inc. Action was begun to review the award, which was confirmed by order dated November 16, 1932. A judgment was thereupon entered, from which this appeal is taken.Fisher, Cashin & Reinholdt, of Stevens Point, for appellants.

James E. Finnegan, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondent.

FAIRCHILD, Justice.

The circuit court approved the holding of the Industrial Commission that at the time of injury Belknap was in the employ of appellant, performing service growing out of and incidental to such employment. Is there evidence to sustain the finding that Belknap was an employee, or from the facts established does the conclusion follow that he was doing business in an independent capacity? There is no written contract to the terms of which we can look for light upon his relation to the company. Belknap at the time was seventy-eight years of age, and during his connection with appellant or its business was engaged in selling monuments. He was paid by commissions on orders secured by him; he traveled in his own car; paid his own expenses. Accounts in which he was interested by reason of his having made the sales and because they constituted the basis of his earnings were collected by him upon request from appellant. It is conceded that Belknap worked only when he felt like it. He was furnished a sample case, a catalogue, and blanks. The sample case was loaned to him and charged against him to be credited on his account upon return. As deaths occurred in the territory in which Belknap worked, appellant sent clippings and suggestions to him with relation thereto.

At the time of his death, January 30, 1931, he was taking a prospective customer to see some monuments with the purpose of transacting some business with this customer. The evidence offered is consistent only with the relation of independent contractor and principal between Belknap and appellant. Belknap worked about half time. When he received an order he sent it to appellant. At times he accepted down payments on contracts which he signed as salesman. He was paid a commission of 15 per cent. upon business done by him alone and of 7 1/2 per cent. if assisted in making a sale by the supervisors of salesmen coming into his territory upon his request. If sold and not paid for, a monument would be removed, and Belknap would be obliged to pay back his commission. He made no daily reports and communicated with the company only when he sent in an order. No control of the details of his work was attempted by...