Tiffany v. Indus. Comm'n

• Decision Date: 25 May 1937
• Citation: 225 Wis. 187,273 N.W. 519
• Parties: TIFFANY et al. v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

225 Wis. 187

273 N.W. 519

TIFFANY et al.

v.INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

May 25, 1937.

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

Affirmed.

This action was begun on March 27, 1936, by H. O. Tiffany and his insurance carrier, Employers Mutual Liability Insurance Company, plaintiffs, against Romey Moy and the Industrial Commission of Wisconsin, defendants, to review a judgment of the circuit court for Dane county, entered on November 19, 1936, confirming an order of the Industrial Commission awarding compensation to the defendant Romey Moy.

The plaintiff Tiffany, a farmer, owner of some timber lands, operated two or more lath mills, a sawmill, and a snow fence machine. Moy had been employed by Tiffany since 1927 except during 1929 and 1932. Moy had worked his way up to be foreman, and in that capacity had charge of Tiffany's fence making machine, sawmill, and the building of camps, etc. In his capacity as foreman Moy could hire and discharge men and he kept a record of the men's time. In July, 1933, and for three or four months in 1934, Moy operated a lath mill owned by Tiffany and received $2 per thousand for the lath produced, out of which the expenses of the operation of the lath mill were paid. Under this arrangement Moy had complete and entire control of the organization and operation of the lath mill, over the details of fabrication; Moy hired his own men, fixed their wages, and fired the men working in the lath mill. The wages of the men and the expenses of operation were paid by Tiffany and charged to the account of Moy. The difference between the amount so charged and $2 per thousand feet of lath produced was Moy's compensation for the operation of the mill. When Moy was not operating the lath mill, he acted as foreman for Tiffany operating the sawmill, making snow fence, and building camps, etc., and for services so rendered he was paid $3 a day and his board.

In 1934, the year preceding the injury, Moy operated the lath mill for three or four months and worked as foreman for Tiffany for the other eight or nine months. In 1933 Tiffany had operated one lath mill himself, which was in charge of one Lyle Lennox. Moy became ill, and for about ten days the lath mill operated by him was shut down. Tiffany made no attempt to run the mill during that period either personally or through other employees. It was a part of Moy's duty to attend to moving of the lath mill which was set up at different places where it was convenient to supply it with raw material. The wages of the men employed in moving the mill were charged to Moy, and Moy received no compensation for the services he rendered in the removal of the mill. It was while he was engaged in moving the mill on January 3, 1935, pursuant to directions given by Tiffany, that he accidentally sustained the injury for which he seeks compensation.

Tiffany signed up under the NRA administration and instructed Moy that thereafter Moy could not operate his lath mill over eight hours a day and that he (Tiffany) expected Moy to comply with the order. Tiffany exercised no supervision over the operation of the lath mill except to see that the product conformed to the specifications. On one occasion Tiffany desired the services of one of Moy's operators by the name of Larson. He sent another man to take his place and directed Moy to release Larson, which he did without question.

Upon the hearing before the examiner, the examiner concluded that Moy was an independent contractor and directed the application to be dismissed. Upon motion, the Industrial Commission set aside the determination of the commissioner, took additional testimony, and upon the whole record held that Moy was an employe and made an award accordingly.

Quarles, Spence & Quarles, of Milwaukee (Kenneth Grubb and Jefferson Burrus, both of Milwaukee, of counsel), for appellants.

Orland S. Loomis, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondents.

ROSENBERRY, Chief Justice.

The evidence in this case, only the more material part being set out in the statement of facts, presents as complicated a case of employer-employee-independent contractor relationship as this court has been called upon to consider.

[1][2] Plaintiffs contend that, the facts being without dispute, only a question of law is involved. Where, however, from the facts different inferences may be drawn, a question of fact rather than of law is presented. Scott & Howe L. Co. v. Industrial Comm. (1924) 184 Wis. 278, 199 N.W. 160. In this case it is impossible merely by applying a rule of law to the evidence to reach a final determination in the matter. Tesch v. Industrial Comm. (1930) 200 Wis. 616, 229 N.W. 194. Before a rule of law can be applied in this case, it must first be ascertained who had control of the operation in which Moy was engaged. If we were to consider only the facts connected with the manufacture of lath applying rules of law we should be obliged to hold that Moy was an independent contractor but these are not all of the facts. Moy was an employee of Tiffany in all other operations except the running of the lath mill. That is without dispute in the case. It is claimed that the arrangement made between Moy and Tiffany with respect to the manufacture of lath made him an independent contractor while he was engaged in that operation. However, certain facts appear in the case without dispute which tend to show that, although he had control of the operation, organized the crew, hired and fired the men, nevertheless the arrangement by which he received $2 per thousand less expenses was merely a method of fixing his compensation.Tiffany at times directed Moy to shut down the mail and to take his men and make snow fence, in which operation he was admittedly an employee. When he wanted camps built for his lumbering operations he went to Moy and told him where to locate and build them. In performing that service Moy was admittedly an employee. When the National Industrial Recovery Act (48 Stat. 195) went into effect Mr. Tiffany, as he expressed it, “signed up.” He then went to Moy and, without consulting him, told him that they were going to work eight hours a day and pay 27 1/2 cents an hour and said: “You finish out the week as you are and next Monday morning start and tell your crew Monday morning the number of hours they are going to work and the wages they will receive and what it will cost them a week for board.”

Prior thereto the men under Moy had been receiving $1 a day and board. No adjustment was made on the price to be paid Moy per thousand feet...