Seaman Body Corp. v. Indus. Comm'n of Wis.

• Decision Date: 10 March 1931
• Citation: 204 Wis. 157,235 N.W. 433
• Parties: SEAMAN BODY CORPORATION v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

204 Wis. 157

235 N.W. 433

SEAMAN BODY CORPORATION

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

March 10, 1931.

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

Affirmed.

This action was commenced on the 9th day of October, 1929, in the circuit court for Dane county to set aside an order and award of the Industrial Commission in a certain proceeding in which Clement Tiskewicz was applicant and Seaman Body Corporation, Charles Abresch & Co. and Employers' Mutual Liability Insurance Company were respondents. The commission found that the applicant, on February 22, 1929, at the time he was injured, was not an employee of Charles Abresch & Co., but was in the employ of the Seaman Body Corporation, and awarded compensation accordingly. On appeal to the circuit court, it was held that the applicant, at the time he was injured, was an employee loaned by the Seaman Body Corporation to Charles Abresch & Co., and was in the employ of the latter. From a judgment entered on the 3d day of June, 1930, setting aside the order and award, and remanding the record to the Industrial Commission, Charles Abresch & Co., and Employers' Mutual Liability Insurance Company appealed.Quarles, Spence & Quarles, of Milwaukee (Arthur B. Doe, of Milwaukee, of counsel), for appellants.

Fawsett & Shea, of Milwaukee, for respondent.

John W. Reynolds, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for Industrial Commission.

NELSON, J.

No question is raised as to the right of Tiskewicz to compensation in the sum found by the commission. The only question involved in this appeal is whether compensation for Tiskewicz' injuries shall be paid by Seaman Body Corporation or by Charles Abresch & Company--the question of responsibility depending on which of the two companies was the employer of the injured man at the time of the accident. The commission found that, at the time of the injury, the applicant “was not an employee of Charles Abresch & Company,” but was “in the employ of the Seaman Body Corporation,” and made an award against the latter company, but without filing specific findings of fact on the subject. The circuit court held that the very general findings of the commission were merely conclusions of law within the definition thereof stated in Tesch v. Industrial Commission, 200 Wis. 616, 229 N. W. 194, and as conclusions of law were erroneous upon the undisputed testimony. The court therefore remanded the action, with directions to enter the award against the Abresch Company instead of against Seaman Body Corporation. This is claimed to be error.

The material facts are not in dispute. Seaman Body Corporation was engaged at Milwaukee in manufacturing automobile bodies. Charles Abresch & Co. operated a woodworking plant at Milwaukee. On February 15, 1929, the Abresch Company contracted to manufacture and sell to Seaman Body Corporation a quantity of wooden automobile body parts known as “arm rests,” to be delivered as ordered by the plaintiff from day to day or week to week. On February 21, the day before applicant was injured, one Callendar, who was the Abresch Company manager, telephoned Bauman, superintendent of the Seaman Body Corporation, that, on account of an accident in its plant, the Abresch Company was short of men and needed help in order to turn out the number of arm rests required for delivery under its contract, and requested Bauman to send one or two “shaper hands” to help out for three or four days until they could be replaced by other men. Bauman told Callendar he would send two men as soon as possible, and he immediately thereafter instructed his assistant, Hetzel, to send two men to the Abresch plant so as to help out that company in keeping up with its schedule of arm rests deliveries. Hetzel then went to Tiskewicz, explained the emergency which had arisen in the Abresch Company plant, and said he wanted Tiskewicz to go down to the Abresch Company and help it out, to which Tiskewicz said “all right”--that he would go. Before leaving the Seaman plant, Tiskewicz asked Hetzel who was to pay him for his work at the Abresch Company, and Hetzel told him that he would be paid right along the same as he was being paid by the Seaman Company. Hetzel then told Gonia, another Seaman employee, that he wanted him to go also to the Abresch plant. Gonia said it would be all right if he got the same wages he was then earning at the Seaman plant, which earnings were 90 cents an hour. Hetzel agreed to these terms, and Hetzel, Tiskewicz, and Gonia left the Seaman plant about 3 o'clock and went to the Abresch Company's plant. On arrival there they were received by one Graboske, who was the acting foreman of the woodworking department. Graboske had been instructed by Callendar to expect two “shaper hands” sent by Bauman and to put them to work on arm rests. Graboske showed Tiskewicz and Gonia the machine on which they were to work, helped them find the necessary forms and equipment for the operation which he told them to perform, and showed them where to get the wood materials to be put through the machine. Tiskewicz and Gonia complied with these instructions, and proceeded to turn out arm rests. Graboske later put them to work on a different machine, at which Tiskewicz continued to work until he was injured on the following day. During that time Tiskewicz ran various operations required for the production of arm rests. Graboske watched the work of Tiskewicz and Gonia, inspected, measured, and commented from time to time on the results which they were producing, told them how many units they were to run through the machines, and at intervals directed them to change from one operation to another.

Throughout all of the time that Tiskewicz worked at the Abresch Company on February 21 and 22 he received no orders, instructions, or directions of any kind from any person except Graboske. During that time no representative of Seaman Body Corporation exercised the slightest measure of authority or control over him or over the selection or performance of his work. The machine on which Tiskewicz was injured was in fact the property of Seaman Body Corporation, which machine had been loaned some months before to the Abresch Company as an accommodation in connection with the work on which the Abresch Company had been engaged. There was no charge of any kind for the use of the machine, and no agreement or restriction as to its use, and it was subject to removal at any time by Seaman Body Corporation without notice. The presence of this machine in the Abresch Company plant at the time of the accident had no connection with the arm rest contract or with the services of Tiskewicz and Gonia. Both of these men first worked on a machine which belonged to the Abresch Company. The reason that Tiskewicz was operating the particular machine in question at the time of the accident was because Graboske had directed him to work on that machine. In making up the pay roll on the day following the accident, the Seaman Body Corporation's pay roll clerk obtained from Gonia the number of hours worked by him and Tiskewicz at the Abresch Company plant. The time thus obtained, forty-five and a half hours, was entered at the rate of 90 cents per hour on the pay roll of Seaman Body Corporation in the aggregate amount of $40.95, and the full amount of this sum was included in the checks issued to Tiskewicz and Gonia. Tiskewicz received $9.90 of the amount and Gonia received $31.05; the latter having continued to work at the Abresch plant for several days after the accident. Seaman Body Corporation thereafter sent the Abresch Company a debit memorandum charging the latter company with $40.95 on account of the labor of...