Kress Packing Co., Inc. v. Kottwitz

• Decision Date: 27 November 1973
• Docket Number: No. 184,184
• Citation: 212 N.W.2d 97,61 Wis.2d 175
• Parties: KRESS PACKING COMPANY, INC., and Northwestern National Insurance Company of Milwaukee, Wisconsin, Respondents, v. Reuben KOTTWITZ, Appellant, Department of Industry, Labor and Human Relations, Defendant.
• Court: Wisconsin Supreme Court

Page 97

212 N.W.2d 97

61 Wis.2d 175

KRESS PACKING COMPANY, INC., and Northwestern National

Insurance Company of Milwaukee, Wisconsin, Respondents, v. Reuben KOTTWITZ, Appellant, Department of Industry, Labor and Human Relations, Defendant.

No. 184.

Supreme Court of Wisconsin.

Nov. 27, 1973.

Wickhem, Consigny, Sedor, Andrews & Hemming, Janesville, for appellant.

Axley, Brynelson, Herrick & Gehl, Madison, for respondents.

HALLOWS, Chief Justice.

The only issue on this appeal is whether Kottwitz was an employee of Kress at the time of the accident for workmen's compensation purposes. Whether Kottwitz was an employee is a question of law to be determined by the application of well-defined rules to the facts. Ace Refrigeration & H. Co. v. Industrial Comm. (1966), 32 Wis.2d 311, 315, 145 N.W.2d 777. This view was expounded in Duvick v. Industrial Comm. (1963), 22 Wis.2d 155, 162, 125 N.W.2d 356; Harry Crow & Son, Inc. v. Industrial Comm. (1963), 18 Wis.2d 436, 440, 118 N.W.2d 841; and Gant v. Industrial Comm. (1953), 263 Wis. 64, 69, 56 N.W.2d 525.

Kottwitz argues that the question of whether he is an employee is a question of ultimate fact which cannot be upset on appeal excepting under sec. 102.23(1), Stats., when a commission acts without or in excess of its powers or the order or award was procured by fraud, or the findings of fact do not support the order or award. The findings of fact to withstand reversal need be supported in the record by credible evidence which is relevant and evidentiary in nature and sufficient to exclude speculation and conjecture. The evidence need not be a preponderance or the great weight. Conley v. Industrial Comm. (1966), 30 Wis.2d 71, 140 N.W.2d 210; R. T. Madden, Inc. v. ILHR (1969), 43 Wis.2d 528, 169 N.W.2d 73; Phillips v. ILHR (1972), 56 Wis.2d 569, 202 N.W.2d 249.

There seems to be some confusion, stemming from Gant v. Industrial Comm., supra, that when facts are undisputed and but one inference may reasonably be drawn from the evidence, only a question of law is presented. However, in some cases the evidentiary facts give rise to ultimate facts upon which the conclusion of law must rest. Likewise, when undisputed facts permit the drawing of different inferences, the drawing of one such permissible inference of fact is an act of fact finding and the inference so derived constitutes an ultimate fact upon which a conclusion of law may rest. This is all the language in the cases means. Phillips v. ILHR Department, supra; Detter v. ILHR Department (1968), 40 Wis.2d 284, 287, 288, 161 N.W.2d 873; Prentice v. ILHR Department (1968), 38 Wis.2d 219, 156 N.W.2d 482; Neese v. State Medical Society (1967), 36 Wis.2d 497, 503, 504, 153 N.W.2d 552; Harry Crow & Son, Inc., supra, at 440 of 18 Wis.2d, 118 N.W.2d 841; American Motors Corp. v. Industrial Comm. (1957), 1 Wis.2d 261, 264, 265, 83 N.W.2d 714.

The ambiguity arises in stating the converse of the proposition, i.e., conclusions of law arise only in situations where the facts are undisputed and but one reasonable inference can be drawn from those facts. See Phillips v. ILHR Department, supra; and Detter v. ILHR Department, supra. This untrue converse proposition has its companion--that a conclusion of law is not involved when evidentiary facts are in conflict but only an ultimate question of facts in involved. A finding of fact, ultimate or evidentiary, must still in its essential nature be a fact. A conclusion of law goes farther and accepts the facts, ultimate and evidentiary, and by judicial reasoning results from the application of rules or concepts of law to those facts, whether the facts are undisputed or not. An ultimate fact may be found as a matter of law, but such process does not change its factual nature to a conclusion of law because of the method by which it was arrived at. 'As a matter of law' merely means no other factual finding could be reasonably drawn from the evidentiary facts.

The evidentiary facts in the instant case are not in dispute; some ultimate facts found are questionable. But accepting the inferences and ultimate facts drawn by the commission, we are of the opinion that they do not support a conclusion of law that Kottwitz was an employee of Kress. Under sec. 102.03(1) (a), Stats., the liability of an employer exists only when an employee sustains an injury. In sec. 102.07(4), an 'employee' is defined as 'Every person in the service of another under any contract of hire, express or implied . . .' What this section of the statute means is a question of law.

For many years the Richwood V.F.W. Post sponsored a Memorial Day picnic on its clubhouse grounds. Kress had provided the meat for the picnic on a cost basis and for a period of about ten years the arrangements to procure the meat had usually been handled by Kottwitz. For years the V.F.W. Post requested the use of the Kress company's refrigerated truck, and in 1969 Kottwitz made arrangements for the use of the truck to keep the meat refrigerated. Kottwitz was a member of the general picnic committee and was chairman of the food stand. He contacted Robert Schaefer, manager of the Kress plant, with whom he was personally acquainted. Schaefer provided instructions as to when Kottwitz should pick up the truck and when it was to be returned, and it was specified that only Kottwitz could drive the truck.

This particular year two employees of Kress drove the truck to Richwood on their way home from Waterloo to Watertown. After the truck was delivered, Kottwitz assumed charge and parked the truck in its proper place where it remained until he returned it. During the 10-year period the truck had been used some 30 to 40 times. Kottwitz was never paid for driving the truck and Kress provided the gas and oil; and if Kress had not furnished the truck, the Post would have obtained their meat supplies elsewhere. Kress customarily provided meat for similar events sponsored by other organizations in the area but on those occasions the trucks were operated by Kress employees. Kress would have provided a driver in this case if Kottwitz had not been available. ...