Opinion
June 1, 1965 —
June 25, 1965.
APPEAL from a judgment of the circuit court for Dane county: RICHARD W. BARDWELL, Circuit Judge. Affirmed.
For the appellant there was a brief by Goldberg, Previant Uelmen of Milwaukee, and oral argument by Albert J. Goldberg.
For the respondent Industrial Commission the cause was argued by Gordon Samuelsen, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
For the respondents Jack Levings, Kenneth Levings, and Shelby Mutual Insurance Company there was a brief by Kivett Kasdorf, attorneys, and Clifford C. Kasdorf of counsel, all of Milwaukee, and oral argument by Clifford C. Kasdorf.
On January 13, 1962, the applicant, Gordon La Favor, sustained an injury when he fell from a scaffold as he was nailing plywood at a home being constructed for the defendants, Jack Levings and Kenneth Levings. A principal issue in this case is whether the applicant, at the time of his accident, was performing work as an independent contractor or as an employee of the Levings brothers.
The Levings brothers are partners doing business as Levings and Sons, in the city of Milwaukee. The partnership is engaged in the business of real-estate brokerage and the construction of new homes for sale to the public. Mr. La Favor was employed by the Levings brothers in October, 1959, as a salesman. A short time after he began working, Mr. La Favor was given the additional job of supervising the construction of new homes built by the Levings brothers.
Mr. La Favor also did carpentry work for the Levings brothers, but this was considered to be in addition to his regular duties, and he was paid extra for his carpentry work.
The examiner for the Industrial Commission found that Mr. La Favor was acting as an employee of the Levings brothers at the time of the accident and was, therefore, entitled to compensation. The defendants petitioned the Industrial Commission for a review of the examiner's findings, and it was held by the commission that the examiner erred; it ordered that the examiner's findings be set aside and the application be dismissed. An action for the review of such order was commenced in the circuit court for Dane county, and, on December 1, 1964, judgment was entered affirming the Industrial Commission's order to dismiss the application. Further facts will be stated in the opinion.
Statute Involved.
102.07 (8) "Every independent contractor who does not maintain a separate business and who does not hold himself out to and render service to the public, provided he is not himself an employer subject to this chapter or has not complied with the conditions of subsection (2) of section 102.28, shall for the purpose of this chapter be an employe of any employer under this chapter for whom he is performing service in the course of the trade, business, profession or occupation of such employer at the time of the injury."
The Industrial Commission determined that Mr. La Favor was functioning as an independent contractor at the time of his accident, and we believe that the record fully sustains such conclusion. The commission did not make an express finding that Mr. La Favor was not an employee at the time of the accident, but such determination is reasonably implicit in its order.
This appeal requires that we examine the nature of the services performed by the applicant in his two different capacities. In one he was an employee and in the other an independent contractor.
Mr. La Favor's duties as an employee related in part to his supervision of the construction of new homes for the Levings brothers. In this work he hired subcontractors, inspected the work, and generally expedited the whole project. As an employee, Mr. La Favor gave his attention to the contracts which were made between the company and various subcontractors. He kept track of payments and prepared waivers. He also concerned himself with construction loans. Another facet of Mr. La Favor's duties as an employee was to locate vacant property for future construction. As an employee of the Levings brothers, Mr. La Favor was paid $400 for each home that was constructed.
As an independent contractor, Mr. La Favor engaged in the trade of carpentry. Primarily he performed this trade for the Levings brothers, but he also had a number of contracts to do carpentry work for the Masonite Company. In carrying on his carpentry work, Mr. La Favor hired carpenters and treated them as his own employees. He set their hours of work and paid them directly from his own sources. He also paid the social-security taxes and took withholding on the wages of his employed assistants. Mr. La Favor carried workmen's compensation insurance which covered the carpenters working for him.
In furtherance of his carpentry activities, Gordon La Favor had a truck with the name "Gordon Company" appearing upon it. His address and telephone number were also printed on the truck. He had a business checking account under the name of "Gordon Company." The magnitude of Mr. La Favor's carpentry business is suggested by the fact that a payroll audit by his compensation insurance carrier shows that between November, 1961, and May, 1962, Mr. La Favor paid wages in the amount of $2,688.
The appellant argues that he was in dual employment at the time of his injury; that he was doing carpentry work (as an independent contractor) and, in addition, that he was inspecting or supervising such work (as an employee). The facts disclosed by the record do not support the dual employment argument. This is not an instance of dual service where at the time of the injury the two capacities of the workman are inextricably entwined. Murphy Supply Co. v. Industrial Comm. (1931), 206 Wis. 210, 239 N.W. 420; cf. Pinson v. Industrial Comm. (1955), 79 Ariz. 21, 281 P.2d 962; Vance v. Hut Neckwear Co. (1952), 281 App. Div. 151, 118 N.Y. Supp.2d 327; Johnston v. International Freighting Corp. (1949), 274 App. Div. 728, 87 N Y Supp.2d 297; Sweatt v. Board of Education (1953), 237 N.C. 653, 75 S.E.2d 738; 1 Larson, Law of Workmen's Compensation, p. 721, sec. 48.50.
The commission's finding that Mr. La Favor was acting as an independent contractor at the time of the accident is well supported. We find no valid basis for concluding that Mr. La Favor was also serving as an employee of the Levings brothers at such time. His duties as an employee were broad, but it is not reasonable to say that at the time of the accident they were intertwined with the carpentry work which was being performed.
Under sec. 102.07 (8), Stats., an independent contractor may not qualify as an "employee" if he maintains a separate business and also holds himself out to and renders service to the public. In view of Mr. La Favor's activities in the carpentry business, he may not be considered a "statutory employee."
By the Court. — Judgment affirmed.