Paschke v. Backen

• Decision Date: 09 May 1933
• Citation: 248 N.W. 428,211 Wis. 450
• Parties: PASCHKE ET UX. v. BACKEN ET AL.
• Court: Wisconsin Supreme Court

211 Wis. 450

248 N.W. 428

PASCHKE ET UX.

v.BACKEN ET AL.

Supreme Court of Wisconsin.

May 9, 1933.

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

Action by Gust Paschke and Edith Paschke to set aside an award of compensation to Henry I. Backen, employee, by the Industrial Commission of Wisconsin. From a judgment confirming the award, plaintiffs appeal.--[By Editorial Staff.]

Reversed and remanded, with directions to vacate the award as to plaintiff Edith Paschke and award confirmed as to plaintiff Gust Paschke.

Action to set aside an award made by the Industrial Commission. The circuit court entered judgment confirming the award, and plaintiffs appealed.Randall, Cavanagh, Stephenson & Mittelstaed, of Kenosha (H. G. Haight, of Neillsville, of counsel), for appellants.

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

FRITZ, Justice.

Plaintiffs, who are husband and wife, commenced this action to set aside an award made by the Industrial Commission for the payment of compensation by plaintiffs to the defendant Henry I. Backen because of injuries and disability sustained by him on September 11, 1930. The award was based on the commission's finding that, at the time of his injury, Backen was an employee of Gust Paschke and Edith Paschke, who were engaged in the joint venture of silo filling. The circuit court confirmed that award, and plaintiffs appealed.

[1] On this appeal, the sole contention of plaintiffs is that the judgment should be reversed, and the award vacated as to Edith Paschke, on the ground that there is no evidence to support the finding that Backen was an employee of Edith Paschke; or of Gust Paschke and Edith Paschke jointly; or that Edith Paschke was engaged with Gust Paschke in the joint venture of silo filling.

A review of the record discloses that the plaintiffs' contention is sound. There is no material conflict in the evidence, and no impeachment of the testimony of the plaintiffs. Backen was injured while working at a silo filler on the farm of Charles Maki, who had contracted with Gust Paschke for the use of the filler, which was to be operated by labor and power supplied by the latter. Backen testified that Gust Paschke hired him to go to work, and that he had no conversation and no dealings with Edith Paschke regarding this silo filling. The plaintiffs testified, without contradiction, that the silo filler, at which Backen was injured, had been acquired by Gust Paschke, in exchange for another filler, which he owned, and his promissory notes, which he paid. To provide the power required to operate the filler, Gust Paschke used a tractor owned by Edith Paschke. For such use she charged Gust Paschke $6 per day, under an agreement between them. She and Gust Paschke resided on a farm, which she had acquired in her own name, with proceeds derived from her separate estate, and which she operated as her own and for her own benefit. All personal property on her farm, excepting the silo filler and an automobile, belonged to her. In a deed to her executed by Gust Paschke (to correct an error in a deed by which her vendor had conveyed the farm to her and her husband, and which she had refused to accept), there was a provision that “all personal property then on the farm or such as may thereafter be obtained should be the property of the wife.” However, neither ever considered that provision applicable to the silo filler, which was acquired by Gust Paschke after he executed that deed, and she never received any money for silo filling.

For Gust Paschke's services on the farm he was credited by her with $15 per month, and his expenses. They kept no books of account or other written record of their transactions, excepting bank checks and the stubs. She had a checking account at a bank. He formerly had an account of his own at another bank which failed, and thereafter he never kept any of his money in a bank. To checks issued on her account for her obligations, or benefit, her name was signed either by her or her husband, and to checks issued in discharge of his obligations either she or her husband signed his...