Tesch v. Indus. Comm'n

• Decision Date: 04 February 1930
• Citation: 229 N.W. 194,200 Wis. 616
• Court: Wisconsin Supreme Court
• Parties: TESCH v. INDUSTRIAL COMMISSION ET AL.

200 Wis. 616

229 N.W. 194

TESCH

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

Feb. 4, 1930.

Appeal from a judgment of the Circuit Court for Dane County; August C. Hoppmann, Judge.

Action by Edwin Tesch against the Industrial Commission, Minnie Brustman, and others to review an award of the commission. From a judgment confirming the award, plaintiff appeals. Reversed and remanded, with directions.--[By Editorial Staff.]

Action begun August 13, 1928; judgment entered June 21, 1929. Workmen's Compensation. Emil Brustman, deceased husband of the claimant, was fatally injured on December 19, 1927, by falling from the roof of a house which was being constructed on the farm of the defendant Cowling. There was an old house upon the farm. Cowling employed Tesch to remodel the house, and for that purpose a part of it was to be torn down. Tesch received 80 cents per hour for his labor. It was planned in the beginning that Cowling and his farm hands would aid in the process. Tesch had done a small amount of contracting, and two men, formerly employed by him, sought employment. He consulted with Cowling, who first objected to the wages asked by the proposed employees, subsequently assented thereto, and the work was continued by Tesch and the two men. There were no plans or specifications for the building. There was no sum named as a contract price. As the work progressed, Cowling determined to tear down the entire structure and rebuild it as he wanted it. During the time they were working upon the Cowling building, Tesch, Brustman, and another went to finish a small job for Brustman. They returned to the work on the Cowling farm, and while engaged in the work Brustman slipped, fell from the roof, and was killed.

The sole question raised upon the hearing was whether Tesch was an employee of Cowling or an independent contractor. The commission made the following finding of fact: “That on December 19, 1927, one Emil Brustman and respondent Edwin Tesch were both subject to the provisions of the Workmen's Compensation Act and that the liability of the respondent Edwin Tesch was not insured under the provisions of said act; that the respondent David Cowling on said day was a farmer and was not subject to the provisions of the Workmen's Compensation Act; that on said day, said Emil Brustman was employed by said Edwin Tesch and while performing services growing out of and incidental to his employment was accidentally injured,” etc.

This action was begun in the circuit court for Dane county to review the award of the Industrial Commission. Judgment was entered confirming the award, from which the plaintiff Tesch appeals.

Bouck, Hilton, Kluwin & Dempsey and Percy Dornbrook, all of Oshkosh, and O. T. Toebaas, of Madison, for appellant.

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

ROSENBERRY, C. J.

The perusal and consideration of the record in this case in the light of other cases recently before the court has led us to reconsider some of the essential features of the Workmen's Compensation Act (St. 1927, c. 102), especially those regarding the determination of questions of fact.

The act (section 102.18) requires that after final hearing the commission shall make and file (1) its findings upon all the facts involved in the controversy, and (2) its award, which shall state its determination as to the rights of the parties.

The act (section 102.23) also provides that the findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive, and that the award is subject to review only upon the grounds stated in the section.

Under these provisions of the act, it has been held consistently that, if there is evidence which supports the finding of the commission, even though it be against the great weight or clear preponderance of the evidence, the finding may not be disturbed by the court on review.

[1] The state of the record in this case leads us to consider what is meant by a finding of fact as that term is used in the statute. In the first place, a finding of fact is only necessary when there is a conflict in the testimony. The term was well understood in the law at the time of the adoption of the Workmen's Compensation Act. In Potter v. Brown County, 56 Wis. 272, 14 N. W. 375, it was held that, where no issue was joined in an action, findings were not necessary. In Fanning v. Murphy, 126 Wis. 538, 105 N. W. 1056, 4 L. R. A. (N. S.) 666, 110 Am. St. Rep. 946, 5 Ann. Cas. 435, it was held that findings should cover singly and in concise language the pleaded facts without addition by way of argument or recitation of evidence.¹

The only disputed question in this case was whether or not Tesch was an employer of Brustman. The response made to that situation by the findings of the commission was “that on said day, said Emil Brustman was employed by said Edwin Tesch.”

In a case decided herewith, Allaby v. Industrial Commn. and Rogers, 229 N. W. 193, upon a wholly different state of facts, the response of the commission upon the disputed question was “and the applicant thirty-eight years of age was in the employ of the respondent at a wage of $3.00 per day.”

In Habrich v. Bent (Wis.) 227 N. W. 877, decided December 3, 1929, the response of the commission was, the disputed question being the same, “that on said day the deceased W. H. Bent received injury while performing service for the respondent J. F. Habrich.”

In Badger Furniture Co. v. Industrial Commn. and Brisbane (Wis.) 227 N. W. 288, decided November 5, 1929, the question being whether or not the deceased husband of the claimant was an employee, the response of the commission was “that on December 8, 1927, the said John B. Brisbane was in the employ of the respondent as a traveling salesman,” etc.

[2][3] These claims all involved the same dispute, the question being: Was the injured person an employee or an independent contractor? Yet the findings of the commission give no clew to the facts in these various cases which an inspection will disclose were widely variant. A statement of the decision does not constitute a compliance with the requirements of section 102.18. The findings recite quite fully the undisputed facts; this no doubt in response to the statutory injunction that the findings of the commission shall cover “all the facts involved in the controversy.” If the commission is of the opinion that the facts are undisputed, it should indicate that conclusion by its finding. If the facts are in dispute, the controversy should be resolved one way or the other. Upon the disputed question in each of these cases the so-called finding is in fact the decision of the commission. The mere fact it is found under the title “findings of fact” does not affect its real character.

[4] This leads us to the consideration of another matter. The very term findings of fact indicates a determination of what is established by all of the evidence in the case. The mere fact that the finding of the commission may not be set aside under the statute, because it is against the great weight and clear preponderance of the evidence, does not relieve the commission of the duty to make the findings in accordance with the weight and preponderance of the evidence. While the statute relieves the court of the responsibility of reviewing the finding, it adds to the dignity and responsibility of the commission when it makes these findings conclusive. The legal rights and relations of the claimant and employer are determined upon the findings of the commission. If these are made contrary to the weight and preponderance of the evidence, the parties have no right to a review. An injustice is done them for which there is no remedy.

We do not say that formal findings such as should be filed by a circuit judge in cases tried by the court are required. There should be at least an informal recital of the facts which the commission finds to be established. For some years a document designated a memorandum accompanied the so-called findings of fact. That answered the requirements very well in most cases. Voelz v. Industrial Commission, 161 Wis. 240, 152 N. W. 830. Of late decisions have not been accompanied by a statement of facts in any form--merely a statement of the ultimate conclusions arrived at upon both the law and the facts.

[5][6] Differentiation of findings of fact and conclusions of law is admittedly often a difficult task. Probably no better rule of thumb can be devised than that suggested in Village of Weyauwega v. Industrial Commn., 180 Wis. 168, 192 N. W. 452, where it is said:

“Whether a finding is an ultimate fact or conclusion of law depends upon whether it is reached by natural reasoning or by the application of fixed rules of law.” That is, where the ultimate conclusion can be arrived at only by applying a rule of law, the result so reached embodies a conclusion of law and is not a finding of fact. Consequently when, as in this case, the commission says “that on said day, said Emil Brustman was employed by said Edwin Tesch,” it merely announces its decision. Applying the legal definition of employer and employee, it reaches the conclusion that the relation existing between Tesch and Brustman was that of employer and employee; the facts to which the commission applied the rule of law do not appear in the findings. Upon the widely variant facts of three of the cases cited, the findings is the same. We have reviewed very carefully all of the evidence. So far as we can discover there is no conflict in the evidence, nor is there a single fact which even indicates that Brustman was the employee of Tesch. On the contrary, it clearly and conclusively appears that Brustman was the employee of Cowling.

The attempt of the Attorney General to point out evidence which supports the findings drives him to the necessity of supporting the finding of the commission by the following:

Cowling testified:

“Well...