Medford Lumber Co. v. Mahner

• Decision Date: 09 October 1928
• Citation: 221 N.W. 390,197 Wis. 35
• Parties: MEDFORD LUMBER CO. ET AL. v. MAHNER ET AL.
• Court: Wisconsin Supreme Court

197 Wis. 35

221 N.W. 390

MEDFORD LUMBER CO. ET AL.

v.MAHNER ET AL.

Supreme Court of Wisconsin.

Oct. 9, 1928.

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

This action was brought by the Medford Lumber Company and its insurance carrier, the Employers' Mutual Liability Insurance Company, to set aside an award of the Industrial Commission in favor of Myrtle Mahner and against the plaintiffs under the Workmen's Compensation Act (St. 1927, § 102.01-102.41). From a judgment affirming the award, the plaintiffs 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.

[1] The plaintiff Medford Lumber Company entered into a written contract with one Joseph Mahner whereby the said Mahner agreed to cut, log and deliver in rollways at the railroad tracks all of the merchantable sawlog timber standing on lands described, “or other lands as may be agreed upon at a later date.” The contract prescribed the length into which the logs were to be cut and the minimum circumference at the top. It further prescribed that the logs should be decked in a good and workmanlike manner, and the maximum and minimum distance that they should be decked from the rail. The lumber company agreed to pay $6.00 per 100 feet for the work. The contract further provided:

“That the party of the second part shall not pay higher wages than that paid by the party of the first part in their logging operations, unless by mutual consent,” and “that the party of the second part shall board men and teams at the camps of the party of the first part at the rate of $6 per week per man and $1.35 per day per teams,” and “all of the above work is to be done in a good and workmanlike manner by the party of the second part, and must not be sublet as a job, and the work to be done under the supervision and direction of the party of the first part.”

Upon prosecuting work under this contract, Mahner sustained injuries resulting in his death. The Industrial Commission made an award under the Workmen's Compensation Act (St. 1927, §§ 102.01-102.41) to his widow. The appellants contend that Mahner was an independent contractor, and not an employé of the company.

In Kneeland-McLurg Lumber Co. v. Eder (Wis.) 220 N. W. 199, it was held that a contract quite similar gave rise to an independent contractor rather than an employé. That case is controlling here, unless the contentions of respondents, to be noted, compel a different conclusion. It is conceded that one of the controlling tests to be applied in determining whether the status of employé or independent contractor exists under such a contract is whether the right to control the details of the work is conferred upon the one who undertakes to perform the work, or is retained by the one who contracts for the performance of the work. Respondents contend that the right to control the details of the work was reserved by the Medford Lumber Company. That contention is based, first, upon the language of the contract providing that the work “be done under the supervision and direction of the party of the first part”; and, second, upon the fact, as contended, that the lumber company actually exercised control over the details of the work--its conduct in that respect amounting to a practical construction of the contract.

A provision in a contract reserving in the one who is contracting for the performance of the work the right to supervise and direct the work is very common in contracts of this character, and especially in construction contracts. Generally the purpose of such a provision is to see that the work is so executed as to bring about the result contemplated by the contract. It is the ultimate result, and not the manner in which it shall be done, with which the owner is concerned. He has a right to see that proper materials are used, that the work is done in a workmanlike manner, etc., and where he has that right his failure to object seasonably, under some circumstances, constitutes a waiver of his right to insist upon a full and faithful performance of the contract. The object and purpose of such a reservation, in connection with the work to be performed, must be kept in mind...