St. Mary's Congregation v. Industrial Commission

• Decision Date: 30 December 1953
• Citation: 62 N.W.2d 19,265 Wis. 525
• Parties: ST. MARY'S CONGREGATION et al. v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

Page 19

62 N.W.2d 19

265 Wis. 525

ST. MARY'S CONGREGATION et al. v. INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

Dec. 30, 1953.

Action instituted pursuant to sec. 102.23, Stats., by the plaintiff St. Mary's Congregation (hereinafter referred to as the 'Congregation') and its insurance carrier to review an order of the Industrial Commission awarding workmen's compensation benefits to the defendant Vincent Zacharias.

The applicant Zacharias was a skilled cabinet maker and carpenter residing in the city of Kaukauna, and he maintained a small carpenter shop in which he did his cabinet work and kept his tools. Prior to World War II he did odd jobs of carpentry and cabinet making, and then during the war he worked as a carpenter on war construction jobs for other contractors away from Kaukauna. He returned to Kaukauna after the war and devoted his efforts to building homes which he erected on lots purchased by him, which homes he subsequently sold. Occasionally, after World War II, he undertook some repair jobs for other people but not many of them. After World War II he operated as a sole trader under the name of Kaukauna Home Improvement Company.

The plaintiff Congregation maintained at Kaukauna a church, a parochial school, and a rectory. Zacharias was a member of the Congregation and for approximately ten years prior to 1948 each summer he undertook odd repair jobs for the Congregation, billing the Congregation at a fixed hourly rate, the Congregation furnishing all materials. In the summer of 1948 Reverend Esdepsky, pastor of the Congregation, contacted Zacharias and asked him to come and do some repair work. At that time Zacharias was busy building a house for sale, and did not respond to the pastor's call right away, but sometime later the pastor again requested Zacharias to come and do such work and Zacharias then responded. Such repair work done for the Congregation in the summer of 1948 consisted of repairing broken desk drawers, sash cords, windows that were stuck, the bathroom floor in the rectory, and making adjustments on doors and rehanging them.

The final work undertaken by Zacharias for the Congregation which led to his injury was the repairing of some storm windows which were affixed to the outside of the church over stained glass windows at a considerable height. In order to work on these windows it was necessary to place a scaffold on brackets attached to two 40 foot ladders, the ladders being provided by the church, but Zacharias furnished the brackets and the plank for the scaffolding. In doing the work Zacharias needed the services of an assistant and requested the pastor to have the Congregation janitor help him. However, the janitor was busy getting the school in condition for the opening of the fall term, so the pastor informed Zacharias that he should get someone else to help him. Zacharias then secured the services of one of his own employees by the name of Schuler, and Zacharias paid Schuler $1.75 per hour for the time spent on the work for the Congregation but billed the Congregation $2 per hour for Schuler's time, this being the same amount at which Zacharias billed the church for his own time.

The testimony showed that Zacharias would either be given a list of work that needed to be done or was told orally what repair work was necessary and that then Zacharias would examine the work which needed repairs and determine how the repairs were to be made and what materials would be needed. The pastor admitted that he was not a skilled carpenter and would not have known how the repairs should be done. Zacharias testified that he did not rely on any orders or directions from the pastor as to the details of the work.

On August 18, 1948, while Zacharias was at work upon the scaffold, one of the brackets became unhooked causing the scaffold to tip, and he fell to the ground a distance of some 20 to 25 feet below, and was injured. He subsequently filed a claim for workmen's compensation with the Industrial Commission. A hearing was held on such application before an examiner of the commission. The examiner thereafter made findings of fact wherein he found that the work done by Zacharias for the Congregation was done under the direction and control of the pastor; that the pastor had the right to control the details of the work; that Zacharias never held himself out to the public as a general repairman; and that applicant was employed by the Congregation as an employee at the time of his injury. An interlocutory order was entered November 27, 1950, upon such findings for the payment of workmen's compensation to Zacharias. The Congregation and its insurance carrier then timely moved the commission for review of the findings and order, and an order was entered by the commission under date of December 19, 1950, affirming the findings and order of the examiner. The Congregation and its insurance carrier then instituted action in circuit court for review, and under date of May 6, 1953, the trial court entered judgment confirming the order of the commission. From such judgment the plaintiffs have appealed.

Klapart & Larson, Wausau, Toebaas, Hart, Kraege & Jackman, Madison, of counsel, for appellants.

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

FRITZ, Chief Justice.

The issue on this appeal is whether Zacharias at the time of his injury was an employee of the Congregation or an independent contractor.

This court has repeatedly held that the principal test for determining whether the relationship of employer and employee exists is whether the alleged employer has the right to control the details of the work. Phaneuf v. Industrial Comm., 1953, 263 Wis. 376, 378, 57 N.W.2d 406; Thurn v. La Crosse Liquor Co., 1951, 258 Wis. 448, 46 N.W.2d 212; Hume v. Industrial Comm., 1945, 248 Wis. 5, 20 N.W.2d 573; and Fritz v. Industrial Comm., 1935, 218 Wis. 176, 260 N.W. 459.

Reverend Esdepsky, pastor of the Congregation, who engaged Zacharias to do the odd repair jobs in and about the Congregation's buildings, was asked this question and gave this answer:

'Q. Did you feel, Reverend Esdepsky, that you had the right to control the way in which Mr. Zacharias did the work? A. Yes.'

However, Zacharias, a carpenter and cabinet maker, was a skilled craftsman and at least some of the repair work which he did for the Congregation was such as required a skilled craftsman so to do, such as replacing flooring in the bathroom floor of the rectory and repairing broken desk drawers. Reverend Esdepsky, on the other hand, admitted that he was not a carpenter and therefore did not possess the skilled knowledge necessary to direct Zacharias in the doing of the details of his work. The testimony did disclose that on one occasion Reverend...