Ronning v. Industrial Commission

The following opinion was filed November 11, 1924: Doerfler, J. In enacting the workmen’s compensation act, the legislature, in place of the master’s liability for damages for negligence to his servant, substituted a uniform compensation to employees who had suffered injury, and a death benefit for dependents. This compensation under the act inured to the benefit of all employees subject to the provisions thereof. This departure, while practically an innovation in this country at the time of its adoption, had been in force for many years in European countries. The principle underlying this act recognizes a public interest in those engaged in the performance of services as employees, and such interest springs from the humane idea that an employee injured or incapacitated or who meets his death in the course of and while engaged in his employment should definitely be provided for by way of compensation based upon a uniform schedule. It is also further realized that the loss or damage incurred is an economic one, which should be borne by the industry in which the employee at the time of his injury is engaged. The measure is a beneficent one, springing from humane motives, and is founded upon sound economic doctrine, and for this reason the rule is universally applied wherever a compensation law has been enacted and is in operation, that its provisions shall be liberally construed to accomplish the beneficent purpose for which it was passed. These fundamental ideas must always be prominently borne in mind when issues raised under the act are to be determined. The question of whether a person engaged to do work is an independent contractor or an employee is one which is oftentimes difficult to determine. While the general rules laid down in the decisions must be applied to each particular case, it must nevertheless become apparent that in the ulti [388] mate analysis the final results arrived at depend largely upon the facts and circumstances of each particular case. “The vital test in determining whether a person employed to do certain work is an independent contractor or a mere servant is the control over the work which is reserved by the employer. Stated as a general proposition, if the contractor is under the control of the employer he is a servant; if not under .such control he is an independent contractor.” 14 Ruling Case Law, 67. Sub. (4) of sec. 102.07 of the Statutes defines an employee as applicable to the instant case. Plaintiffs’ counsel contend that the deceased was an independent contractor; that he was hired to do a particular job for a specified compensation, and that he was not under the control or supervision of any one, and was merely responsible for the delivery of the car at Rice Lake. On the other hand, counsel for the defendants contend that the deceased was at all times under the control and direction of C. 0. Ronning; that the latter actually did exercise control over the actions of the deceased; that in any event he had the right of direction or control, and could specify the manner in which the work was to be done and the route to be taken; and that it was considered by all the parties that the deceased was to perform the same services as were performed by other employees of Ronning, and to be paid in the same manner, viz. at the rate of $5 per day and expenses. At the time of the accident the deceased was in the employ of the state, in the conservation department, at an annual salary. In the year 1921, for a period of about seven months., he acted as a salesman for Ronning and was also engaged in performing needful work in and about Ronning’s business. The record does not disclose that the deceased had prior to the accident been engaged as a contractor. On the morning of the 28th of July, the date of the accident, Ronning designated the time when the deceased started out'upon his trip, and he also elected to use his own [389] automobile. Ronning had the exclusive control and management of the car. While Ronning had agreed to pay the expenses of the men engaged on this trip, they did not hire a private conveyance, but were driven by Ronning in his car. It is true that at the time the deceased was engaged nothing was said with reference to the manner in which the work was to be done. From the very nature of the engagement it would appear that Ronning would have no actual supervision or direction of the work; and it does not appear from the evidence that any specific directions were given. The actual performance, therefore, was largely if not exclusively left to the judgment and discretion of the deceased and of Neis Ronning; but while no actual detailed directions or instructions were given as to the manner of performance of the work, it must be apparent from all the facts and circumstances in the case that Ronning nevertheless had' the power of direction and instruction. He could exercise this power or not, as he saw fit. When it came to the fixing of the compensation the deceased was to receive, reference was had to the pay allotted to other employees who had been engaged in similar work, and the basis for such pay was the amount received by the employees while engaged in the actual performance of their duties as mechanics in the garage. The employment of the deceased was not a haphazard one, but was based upon the prior experience which Ronning had with him during his prior service, and the knowledge and ability which the deceased had to not only drive the cars but to perform mechanical services in the event that repairs became necessary. The time necessarily consumed in this trip depended somewhat upon the ability of those in charge of the assembling plant in Minneapolis to give prompt service. It can also be readily inferred that while Ronning fixed the compensation at $5 per day and expenses, if a situation had arisen which would have prevented carrying out the agreement in one day Ron-ning would be obliged to pay at the rate of $5 per day for [390] each day actually necessary to carry out the terms of the contract. An independent contractor is at liberty, unless the terms of the contract otherwise provide, to assign the contract or to engage others to carry out the same. He is only responsible for the ultimate results. In the instant case it is clear that it was the understanding of the parties that Carter was to perform these services in person and that his contract amounted to one of personal service. This becomes evident upon a reading of the testimony and from the surrounding-facts and circumstances, as it appears that Carter was selected on account of his ability to operate a car and to give it his personal attention whenever' necessary repairs were to be made on the trip. An independent contractor ordinarily is not paid at the rate received by employees. There enters into such a contract, to some extent, the element of speculation, and the contractor has in mind a consideration which is larger than that received by the ordinary employee. The service of an employee ordinarily is constant and his pay is uniform. Such is not always the case with an independent contractor. It would appear to us from the foregoing detailed facts that it would be more logical to infer that Carter was engaged as an employee under a contract of service than to hold that he was an independent contractor. The solution of this question, it is true, is connected with some difficulty, but as the matter was presented to the Industrial Commission, the Commission under such facts could logically draw the inference which it did. The Commission did not exceed its authority, and no claim is made, nor can it be made, that it was actuated by fraud. Under such circumstances the Commission’s reasonable inference upon which it bases its findings cannot be disturbed, particularly in view of the well known rule that the workmen’s compensation act must be liberally construed to the end that its’ beneficent purposes may be fully carried out. Lewis v. Industrial Comm. 178 [391] Wis. 449, 190 N. W. 101; Frank Martin-Laskin Co. v. Goetsch, 172 Wis. 548, 179 N. W. 740; Stephenson v. Schelk, 173 Wis. 251, 180 N. W. 842. The learned circuit judge set aside the award of the Industrial Commission, and based his decision on Weyauwega v. Industrial Comm. 180 Wis. 168, 192 N. W. 452. The case referred to clearly presented one of an independent contractor. The deceased in that case agreed to paint a bridge for a specified price, “under a contract which permitted him to do the work in his own way at his own convenience,” and the village reserved no control over the details of the work. Plaintiffs also contend that there was no basis in the evidence to support the finding of average annual earnings and the award of maximum death benefit. We are clearly of the opinion that the Commission made the award under sub. (1) (c) of sec. 102.11 of the Statutes. That is the only provision of the statute applicable to the instant case. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with directions to reinstate the award of the Industrial Commission and to affirm such award. Jones, J., dissents. A motion for a rehearing was denied, with $25 costs, on January 13, 1925.