Village of Prentice v. Industrial Commission
| Decision Date | 27 February 1968 |
| Citation | 38 Wis.2d 219,156 N.W.2d 482 |
| Parties | VILLAGE OF PRENTICE, Plaintiff, Bituminous Casualty Corporation, Plaintiff-Appellant, v. INDUSTRIAL COMM. and Adam Boho, Defendants-Respondents. VILLAGE OF PRENTICE, Plaintiff, Bituminous Casualty Corporation, Plaintiff-Appellant, v. INDUSTRIAL COMM. and John Geng, Sr., Defendants-Respondents. |
| Court | Wisconsin Supreme Court |
Jenswold, Studt, Hanson, Clark & Kaufmann, Madison, for appellant.
Bronson C. La Follette, Atty. Gen., James P. Altman, Asst. Atty. Gen., Madison, for Industrial Comm.
DeBardeleben & Donlin, Park Falls, for Boho and Geng.
The sole issue on this appeal is whether Boho and Geng were employees for workmen's compensation purposes at the time they sustained their injuries. This determination is a question of law if the facts are undisputed and if but one, if any, inference may reasonably be drawn from the evidence before the commission. 1 On the other hand, it is well settled that 'when facts are not in dispute but permit the drawing of different inferences therefrom, the drawing of one of such permissible inferences by the commission is an act of fact finding, and the inference so derived constitutes a finding of an ultimate fact and not a conclusion of law.' 2 Thus the narrow question in the instant case is whether or not, in reaching its determinations that Boho and Geng were employees, the commission selected from competing but permissible inferences which could reasonably be drawn from the facts as found by the commission.
The appellant argues that the only reasonable inference that can be drawn from the facts is that the village did not have the right to control the details of the work performed by Boho and Geng. Respondents contend that the facts reasonably permitted the other inference that the village did have such right of control. We agree with respondents. The commission in finding Kalander 'had the right to direct and control the details of his (Boho's and Geng's) work' chose between inferences and was engaged in fact finding in arriving at its determination. The details of the work involved here were unsophisticated and did not necessitate elaborate explanation. Neither Boho nor Geng were Michelangelos commissioned to paint frescoes on the Sistine chapel. They were engaged to lay sewer pipe. Kalander directed the men to start laying the sewer pipe in the trench. He told them to work on the bottom of the trench and call for anything they needed. He specifically directed them to lay the pipe on a grade which equaled five inches for every 100 feet. This testimony permitted an inference that Kalander had a right to control the details of the job. Kalander's status as the village's general maintenance man indicates that he could have controlled other details of the work if they had arisen. As this court said in Employers Mut. Liability Ins. Co. v. Industrial Comm.: 3
Thus, we conclude that the commission was engaged in fact finding when it made its determination supported by credible evidence and a reasonable inference drawn therefrom that the village had the right to control the details of the work of the two applicants. In making this finding the commission satisfied the principal test for determining if an employer-employee relationship existed. In Ace Refrigeration & Heating Co. v. Industrial Comm. 4 we recently discussed the several tests to be used in ascertaining whether such relationship exists. We said:
5
One of the subsidiary tests mentioned in Ace Refrigeration is the method of compensation. As stated in C. R. Meyer & Sons Co. v. Grady, 6
'* * * One of the usual and ordinary tests * * * which stamps one engaged in performing work an employee rather than an...
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