Hume v. Indus. Comm'n

• Decision Date: 20 November 1945
• Citation: Hume v. Indus. Comm'n, 248 Wis. 5, 20 N.W.2d 573 (Wis. 1945)
• Parties: HUME et al. v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

248 Wis. 5

20 N.W.2d 573

HUME et al.

v.INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

Nov. 20, 1945.

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

Affirmed.

This appeal is from a judgment of the circuit court for Dane county entered June 28, 1945, confirming an interlocutory order of the Industrial Commission dated July 20, 1944, ordering appellants to pay to the respondent Pelky certain sums as compensation for injuries sustained while in the alleged employ of the appellant Hume, and reserving jurisdiction for determining the extent of disability and the amount of medical and hospital expense.The action was commenced August 1, 1944.

North, Bie, Duquaine, Welsh & Trowbridge, of Green Bay, for appellants.

John E. Martin, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., and John D. Kehoe, of Green Bay, for respondents.

MARTIN, Justice.

The facts are, in substance, as follows: On July 30, 1943, defendant Pelky fell from the roof of a barn, injuring himself.For several years prior to 1941he had been employed by roofing companies.For about two years before the accident he had operated an oil station, also operated a small farm, and did some roofing work for friends.He put in full time at the filling station in the winter and part time in the summer, spending some time on the farm and part time on roofing jobs.He had one steady employee and in the summer had a young fellow working part time.He had four roofing jobs in 1943 before the accident and about ten in 1942, although he did not keep track.

The normal roofing season is from June to December.On some jobs he employed a helper, others he did alone.On jobs other than the one in question he bought the material from a wholesaler.He had some equipment and borrowed additional equipment he might need; on the job in question plaintiff Hume furnished the additional equipment needed.He did no formal advertising and had no solicitor.He testified that ‘his regular business is a filling station operator, a part time farmer and I do some roofing work for friends.'

Plaintiff Hume had a roof to put on and no men available and he was told he could probably get Pelky.Hume called on the defendant at the filling station and defendant agreed to put on the roofing for $1.75 per square.Pelky employed a helper on this job and his agreement with the helper was to split the proceeds fifty-fifty.Pelky did not mention to plaintiff who he had or what their agreement was.They hired anotherman who worked on the job part of one day.

Plaintiff agreed to have the materials on the job so that they could start on a Tuesday morning.It was understood that they would work on the job until it was completed, and Pelky estimated that he would complete the job on the following Saturday or Monday.Hume inspected the work two or three times to see how it was going and if additional materials were needed, and he furnished more materials to the job.When defendant was injured the work was about two-thirds done.Plaintiff came to the hospital to see Pelky and Pelky told him of men that could finish the job.Pelky had someone at his station get hold of the men and send them to plaintiff.After the work was completed plaintiff tendered payment for the entire job to defendant.He then distributed the payment in three checks pursuant to a definite agreement with Pelky.

Pelky testified that for two years before the accident he had been taking roofing jobs, hired his own men, and controlled the work; that he had some equipment and borrowed other equipment.Both Hume and Pelky testified that on the job in question Hume had the right to control the details of the work and that he had the right to discharge.

On these facts the examiner found that: ‘Respondent Hume had a right to direct and control the details of the work and could have taken the applicant and his helper off the job and put other men on to finish if he had been dissatisfied with the work which they were doing.'

The examiner further found: ‘The examiner concludes and finds that the applicant did not maintain a separate business as a roofer; that he did not hold himself out to and render service to the public as a roofing contractor; that he was not subject to the Workmen's Compensation Act; that at the time of the accident he was an employe of the respondentCharles M. Hume and performing service for him under a contract of hire and that the injury arose out of said employment.'

Appellants contend that Pelky was an independent contractor and not an employee of Hume.There is applicable the presumption that Pelky was an employee of Hume.In Montello Granite Co. v. Industrial Comm., 227 Wis. 170, 183, 278 N.W. 391, 397, the court said: ‘When a person is injured while performing services for another, a presumption arises in favor of the injured person that he is an employee of the person for whom the service is being performed, and not an independent contractor.That rule casts the burden upon him who seeks to defeat compensation.'

This presumption is rebuttable and ceases to have force or effect when evidence to the contrary is adduced.Huebner v. Industrial Comm., 234 Wis. 239, 243, 244, 290 N.W. 145, 126 A.L.R. 1113.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.Woodside School Dist. v. Industrial Comm., 241 Wis. 469, 471, 6 N.W.2d 182, and cases there cited.In Employers Mut. L. Ins. Co. v. Industrial Comm., 230 Wis. 670, 676, 284 N.W. 548, 551, the court said: ‘It is quite immaterial whether the right to control is exercised by the master so long as he has the right to exercise such control.’See cases there cited.

The testimony as to the right to supervise and control the details of the work is as follows: Pelky was asked:

‘Q.While you were laying the roof out there, if Mr. Hume, while he was out there had wished this roof to be laid some other way, than the way you did it, would you consider he had a right to order you to do so?

‘Mr. Trowbridge: Objected to as leading and suggestive.

‘The Examiner: He may answer subject to the objection.

‘A.Yes, sir.'

Hume went to look at the job two or three times between July 27th and July 30th while Pelky was...