Vill. of Weyauwega v. Kramer

• Decision Date: 10 March 1923
• Citation: 180 Wis. 168,192 N.W. 452
• Parties: VILLAGE OF WEYAUWEGA ET AL. v. KRAMER ET AL.
• Court: Wisconsin Supreme Court

180 Wis. 168

192 N.W. 452

VILLAGE OF WEYAUWEGA ET AL.

v.KRAMER ET AL.

Supreme Court of Wisconsin.

March 6, 1923.

Dissenting Opinion, March 10, 1923.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Proceeding under the Workmen's Compensation Act by Lois Kramer for the death of her husband, opposed by Village of Weyauwega, employer, and Travelers' Insurance Company, insurer. From a judgment affirming an order of the Industrial Commission granting an award, the employer and insurer appeal. Judgment reversed, and cause remanded, with instructions to vacate award.

Claimant's husband, John P. Kramer, sustained injuries while painting a bridge in the village of Weyauwega which resulted in his death. Compensation is claimed. The evidence taken before the Commission shows that the village board of the village of Weyauwega instructed the road and bridge committee of such board to have the bridge painted and hire some one to paint it. The committee secured bids from Kramer and another person. Kramer offered to remove the scales, clean and paint the bridge, the village to furnish the paint, he to furnish the brushes, for $75. The other bid was for $70, upon like conditions. These bids were reported to the village board by the committee, and the committee was authorized, impliedly, if not expressly, to exercise its own judgment in the matter. They then let the job to Kramer for $75. There was no written contract or memorandum of any sort. Kramer was told to “go to it whenever he got around to it.” It was understood that he would paint the bridge at his own time and convenience. There was nothing said whether he should do the work personally or whether he would hire others to assist him. Although Kramer's bid was higher than the other received, they gave the job to him because he was a more reliable man, and they thought they would get a more satisfactory job.

Upon this record the Industrial Commission found that Kramer was an employé at the time of the injury, and awarded compensation to the claimant. On appeal the award was confirmed by the circuit court for Dane county. From such judgment, the village and the insurance company bring this appeal.

Crownhart, J., dissenting.Olin, Butler, Thomas, Stebbins & Stroud, of Madison, for appellants.

H. L. Ekern, Atty. Gen., W. W. Gilman, Asst. Atty. Gen., and William C. O'Connell, of Fox Lake, for respondents.

OWEN, J. (after stating the facts as above).

In order to entitle the claimant to compensation, the relation of employer and employé must have existed between the village and Kramer at the time the injury was sustained. Appellant contends that the relation was not that of employer and employé, but that the relation of Kramer to the village was that of an independent contractor. This is the sole question presented.

It is contended, on the part of the respondent, that the question presented is one of fact, that the evidence is such as to justify different inferences, and that the finding of the Industrial Commission is conclusive. If different inferences may reasonably be drawn from the evidence, even though it be undisputed, then a question of fact is presented, and the conclusion of the Industrial Commission cannot be disturbed. Porter v. Industrial Commission, 173 Wis. 267, 181 N. W. 317. Whether under a given situation the relation is that of an employé or independent contractor is often a question of fact for the jury. Carlson v. Stocking, 91 Wis. 432, 65 N. W. 58;Walker v. Simmons Manufacturing Co., 131 Wis. 542, 111 N. W. 694;Madix v. Hochgreve Brewing Co., 154 Wis. 448, 143 N. W. 189. Where the evidence is undisputed, it is not always easy to determine whether the conclusion to be drawn therefrom is one of fact or of law. Where the conclusion describes a legal status or condition, it is ordinarily denominated a conclusion of law. 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. Travelers' Insurance Company v. Hallauer, 131 Wis. 371, 111 N. W. 527. This court has held that, where there is no conflict in the evidence, the determination of the status of one who claims to have been an employé is a conclusion of law. Cayll v. Waukesha Gas & Electric Co., 172 Wis. 554, 179 N. W. 771;Radtke Bros. & Korsch Co. v. Rutzinski, 174 Wis. 212, 183 N. W. 168. We are convincedthat the evidence before the Commission did not present a question of fact. The terms of the employment were simple and undisputed. Kramer agreed to paint the bridge for $75. He was to do it in his own way and at his own convenience. Under the agreement he was at liberty to do the work himself or hire others to assist him. The village reserved no control over the details of the work. When the bridge was painted, Kramer was entitled to $75. He could not have been discharged at the whim or caprice of the village. Did this in law constitute him an independent contractor? An independent contractor has been defined as--

“One who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to control of his employer, except as to the result of his work.” Madix v. Hochgreve Brewing Co., 154 Wis. 448, 143 N. W. 189.

Also--

“One who * * * undertakes to do specific jobs of work, as an independent business, without submitting himself to control as to the petty details.” Carlson v. Stocking, 91 Wis. 432, 65 N. W. 58.

Numerous tests have been suggested and applied by the courts to assist in the determination of whether a given status is that of an employé or independent contractor, perhaps the most significant of which is whether the employer has the right to control the details of the work. Madix v. Hochgreve Brewing Co., 154 Wis. 448, 143 N. W. 189, and authorities there cited. The right to control the details of the work is to be distinguished from such supervision or inspection as may be necessary to secure the ultimate result. Carleton v. Foundry Machine Products Co., 199 Mich. 148, 165 N. W. 816, 19 A. L. R. 1141. It is clear from the record that the village reserved no right to control the details of the work. Not only that, but it appears the contract was let in this manner for the express purpose of relieving the members of the committee from any responsibility in that respect. Thus one of the members of the committee who made the arrangement with Kramer testified that--

“The bridge committee didn't care to be bothered to look after the day work, and that was the reason we asked to have it done by the job, to know what we was going to pay for it, and settled finally.”

“Q. And can you tell us why it was you didn't hire day laborers to paint the bridge? A. Why, because Mr. Reick and myself on the committee, we didn't want to look after the day labor part of it to keep account of it day by day, and that was the only reason we wanted to know what we was going to pay for the whole job, rather than be bothered looking after it day by day labor.”

And again:

“The $75 charge was simply the plan selected by me and the other member of the committee, in order that we wouldn't be compelled to keep the hours on the work.”

This indicates that the committee desired to give the job to a responsible person, one in whom they had confidence, and one over whom they would be required to exercise no detailed supervision. It appears that what was desired or required to be done was talked over before the agreement. This is shown by the following testimony of the same witness:

“Well, I think all I told him was to clean the dirt off underneath the bridge, underneath the iron work there was a lot of dirt that had to be cleaned off first.

Q. And then painted? A. That is all, and he should scratch off the old scales, if there was any old paint.

Q. That was the understanding originally? A. Yes, sir.

Q. After that there were no more directions given? A. No.

Q. He went ahead and started painting the bridge? A. He went ahead and started painting the bridge; yes.”

Upon redirect examination the witness was asked:

“Q. Did you consider at the time that any other directions were necessary, except to tell him to scratch off the old scales and clean off the dirt and give one coat of paint to the iron work? Did you consider any other directions were necessary under the circumstances? A. No.

Q. Then you gave him all directions that you deemed necessary in order to have him carry on the work? A. Yes, sir.”

This latter was a manifest attempt to show that the right to control the details of the work remained with the village, but that the direction to clean off the dirt, scratch off the old scales, and give one coat of paint to the iron work, was all the directions deemed necessary by the committee. This position, however, is untenable, in view of the fact that the understanding was had prior to the execution of the contract, and prescribed the work which Kramer was expected to do. It is not contended that any power was reserved on the part of the committee or the village board to direct the manner in which the dirt should be cleaned off or the scales scratched off, or what part of the bridge should be painted first, or the kind of a brush that should be used, or any other detail that might arise in the prosecution of the work. That was all left to Kramer.

In Madix v. Hochgreve Brewing Co., 154 Wis. 448, 143 N. W. 189, it is said:

“Other significant characteristics of an independent contractor are that he is usually engaged in carrying on an independent employment or business, and customarily contracts to do a given piece of work for a specified sum of money, and is responsible for the result thereof, while a servant usually works by the hour, day, week, or month, and is not responsible for the result of the work, beyond performing his own labor in a workmanlike manner.”

Here, Kramer undertook to do “a given piece of work for a specified sum of money.”...