Kolman v. Dvorak

• Decision Date: 08 October 1935
• Citation: 219 Wis. 139,262 N.W. 622
• Parties: KOLMAN v. DVORAK ET AL.
• Court: Wisconsin Supreme Court

219 Wis. 139

262 N.W. 622

KOLMAN

v.DVORAK ET AL.

Supreme Court of Wisconsin.

Oct. 8, 1935.

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

Affirmed.

This action was commenced by the plaintiff Ed. Kolman, in 1933, to review an award of the Industrial Commission which ordered him to pay certain compensation to the defendant Frank Dvorak. From a judgment setting aside the award of the Industrial Commission, entered December 15, 1934, Frank Dvorak and the Industrial Commission appealed. The facts will be stated in the opinion.James E. Finnegan, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., and Fred L. Holmes, of Madison, for appellants.

Kopp & Brunckhorst, of Platteville, for respondent.

NELSON, Justice.

[1] Frank Dvorak was injured while engaged in the work of cutting tie logs in the woods. The only controverted question before the commission was whether Dvorak was an employee or an independent contractor. Notwithstanding the fact that this court recently called the attention of the Industrial Commission to its duty to make findings of fact where there is any dispute as to the material facts. Tesch v. Industrial Comm., 200 Wis. 616, 229 N. W. 194, 199, the commission in this case simply found that at the time Dvorak was injured he “was in the employ of” Kolman. That finding is clearly a mere conclusion of law.

[2][3] While we may not disturb the commission's findings of fact, if there be competent credible evidence to support them, we are not bound by its conclusions of law, but may review the facts to ascertain whether the commission exceeded its authority in making its conclusions of law. Gomber v. Industrial Comm. (Wis.) 261 N. W. 409, where numerous prior decisions to that effect are cited.

[4] This court has often pointed out the difference between the relation of master and servant and that of employer and independent contractor. Madix v. Hochgreve B. Co., 154 Wis. 448, 143 N. W. 189;James v. Tobin-Sutton Co., 182 Wis. 36, 195 N. W. 848, 29 A. L. R. 457;Miller & Rose v. Rich, 195 Wis. 468, 218 N. W. 716;Badger F. Co. v. Industrial Comm., 200 Wis. 127, 227 N. W. 288;Kruse v. Weigand, 204 Wis. 195, 235 N. W. 426. It has consistently held that the most significant indicium of an independent contractor is his right to control the details of the work. The principal test to be applied in determining whether one rendering services for another is an employee or an independent contractor is whether the employer has the right to control the details of the work. This is the dominant test, although there are other things to be considered, such as the place of the work, the time of the employment, the method of payment, and the right of summary discharge of employees. Habrich v. Industrial Comm., 200 Wis. 248, 227 N. W. 877, 879. Notwithstanding the fact that the law applicable to a controversy like this is well settled, no attempt was made by the commission to find the facts. No facts were found as to whether Kolman reserved the right to control the details of the work, whether he had the right to control the details of the work, or whether he attempted to control, or to exercise the right to control, the details of the work, which may be considered, when the terms of the contract are in doubt, as an aid in construing the contract. Badger F. Co. v. Industrial Comm., supra.

In this case the record reveals that, with the exception of certain answers of Dvorak which merely expressed his own conclusions as to his status, the testimony is undisputed as to the arrangement entered into by Kolman with the four men who were engaged in the work of cutting ties. Kolman resided at Muscoda. He had no regular business, but was engaged in the business of threshing, shredding, logging, and the like. He obtained a contract to furnish approximately 500 ties. He owned no timber land, but contracted with certain farmers to cut ties on their lands and to pay them ten cents for each tie log cut. Four men, Briggs, Victora, Robovitz, and Dvorak, residing in Muscoda, were anxious for employment and often inquired of Kolman for work. After Kolman had made arrangements for the timber, he told them that they could go into the woods and cut approximately 500 tie logs, the dimensions of which were specified, and that he would pay them 5 cents per cut. The contract was oral. The four men went into the woods and engaged in the work of cutting the tie logs. They furnished their own tools, with the exception of one saw, which was loaned by Kolman to Victora. Briggs kept account of...