Scholz v. Industrial Commission

• Decision Date: 04 May 1954
• Parties: SCHOLZ, v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

Page 204

64 N.W.2d 204

267 Wis. 31

SCHOLZ, v. INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

May 4, 1954.

Rehearing Denied June 18, 1954.

See 65 N.W.2d 1

Action instituted by the plaintiff Bruno Scholz pursuant to section 102.23, Stats., against the defendants Art Hanson and his insurance carrier, Employers Mutual Liability Insurance Company (hereinafter referred to as 'Employers Mutual') to review an order of the Industrial Commission dismissing plaintiff's application for workmen's compensation benefits.

In 1947, the plaintiff Scholz, who resided at or near the unincorporated village of Gleason in Oneida county, started in the bulldozing business. He owned two bulldozers and also a truck by means of which he transported them from place to place. He employed two employees to operate the bulldozers and contracted such bulldozers out to do bulldozing work on an hourly basis, Scholz supplying the operators. Scholz carried a policy of workmen's compensation insurance with Employers Mutual on such two employee operators. Scholz had a contract carrier's permit from the Publice Service Commission to operate such truck and there was painted on the sides of such truck Scholz' name and address, his permit number, and the words 'Hauling and bulldozing'. The defendant Hanson is a farmer and logger also residing near Gleason, who engages in logging operations during the winter. During 1948, Scholz did some bulldozing work for Hanson, and also with his truck hauled some pulpwood for Hanson. Sometime in December, 1949, Hanson entered into a verbal agreement with Scholz whereby Scholz was to transport with his truck pulpwood and logs for Hanson from the logging operations in the woods to mills in Merrill which had purchased such pulpwood from Hanson, and Scholz was to receive therefor a fixed price per cord for pulpwood, and a fixed price per thousand feet for the logs, so hauled. At that time Hanson had no truck of his own and Scholz was to do such hauling during all of Hanson's logging operations until the end of the season in the spring.

Under this arrangement Scholz was to haul two loads of pulpwood or logs per day if Hanson had that much ready. No fixed time was set as to when Hanson was to commence or finish his hauling operations each day. There was but one available route to Merrill over which to operate the truck. Scholz was to pay for the gasoline, oil, and repairs incidental to the operation of the truck, and no deductions were to be made by Hanson from the moneys due Scholz, thus establishing that the parties did not contemplate any deductions for social security taxes or withholding of federal income tax. Nothing was said as to time of payment and, as the arrangement actually worked out, Hanson paid in a lump sum at the end of the season, although he testified that if Scholz had requested it he could have drawn partial payments at any time.

Hanson had a horse-operated jammer for hoisting the logs to be loaded upon the truck and Hanson and his employees assisted Scholz in the loading of the truck, and employees of the mills at Merrill assisted in the unloading. At the time the arrangement was entered into it was understood that Scholz was to supply a driver for the truck, and both parties assumed that such driver would be Scholz himself, but after Scholz' injury Scholz had one of his employees do the driving without consultation with Hanson, and Scholz' performance of the contract was carried out for the remainder of the logging season with such employee as driver.

Scholz commenced his hauling operations under the contract on December 20, 1949, and on the morning of December 23rd, Scholz was injured by falling some ten or eleven feet from the top of a pile of logs loaded on his truck while assisting Hanson and employees of Hanson with such loading. At the time Scholz was on top of the load with a canthook doing 'top-loading', and his canthook broke, precipitating him to the ground and injuring his back. It is for such injury that the application for workmen's compensation benefits was filed by him against Hanson and Employers Mutual.

Hanson testified that he was in doubt whether to include Scholz on Hanson's payroll for purposes of workmen's compensation insurance coverage. Because of such doubt he consulted another trucker and also a representative of Employers Mutual and was advised by them to so include Scholz as an employee for workmen's compensation coverage. The testimony indicates that such advice was sought and given after the accident, but Hanson did testify that he did carry Scholz on his payroll for workmen's compensation purposes prior to the accident. However, the year previous when Scholz had done bulldozing for him, the bulldozer being operated by one of Hanson's employees, Hanson did not carry Scholz' employee on his pay-roll for workmen's compensation coverage because he knew that Scholz had his own workmen's compensation insurance.

Following the accident Employers Mutual paid workmen's compensation benefits to Scholz because of his said injury aggregating $1,665.48. Thereafter Employers Mutual denied liability and contended that the payment of benefits, which had previously been made by it, had been paid through mistake of fact. Scholz then filed an application for workmen's compensation benefits with the Industrial Commission.

A hearing was held on the application before an examiner of the commission. Thereafter, the examiner made findings of fact in which he recited the facts at some length and found that at the time of the injury Scholz was an independent contractor and not an employee of Hanson, and entered an order dismissing Scholz' application. Scholz timely moved the commission for review of the findings and order, and an order was entered by the commission under date of April 7, 1952, affirming the findings and order of the examiner. Scholz then instituted the within action in circuit court for review and under date of October 29, 1953, the trial court entered judgment confirming the order of the commission. From such judgment the plaintiff Scholz has appealed.

O'Melia & Kaye, Rhinelander, for appellant.

Vernon W. Thomson, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., for respondent Commission.

CURRIE, Justice.

The sole issue on this appeal is whether Scholz, at the time of his injury, was an employee of Hanson or an independent contractor.

As was recently pointed out in St. Mary's Congregation v. Industrial Comm., 1953, 265 Wis. 525, 62 N.W.2d 19, the principal test for determining if a relationship of employer-employee exists, is whether the alleged employer has the right to control the details of the work. Although such is the principal test for determining the relationship, there are other subsidiary or secondary tests to be applied, such as the method of payment of compensation, and the presence or absence of the right of the employer to summarily terminate the contract or hiring. Kolman v. Industrial Comm., 1935, 219 Wis. 139, 141, 262 N.W. 622.

From the statement of fact set forth preceding this opinion it is apparent that Hanson was only interested in the ultimate result of having his logs hauled from the woods to the mills in Merrill and had no right to control the details of how Scholz performed his contract of hauling. The fact that no hours were set for the time of performance by Scholz is evidence of this lack of right of control on the part of Hanson. Furthermore, the fact that Scholz, after his injury,...