Opinion
December 4, 1953 —
December 30, 1953.
APPEAL from a judgment of the circuit court for Dane county: HERMAN W. SACHTJEN, Circuit Judge. Reversed.
For the appellants there was a brief by Klaprat, Larson Rogge of Wausau, attorneys, and Toebaas, Hart, Kraege Jackman of Madison of counsel, and oral argument by E. E. Klaprat and W. L. Jackman.
For the respondent Industrial Commission there was a brief by the Attorney General and Mortimer Levitan, assistant attorney general, and oral argument by Mr. Levitan.
Action instituted pursuant to sec. 102.23, Stats., by the plaintiff St. Mary's Congregation (hereinafter referred to as the "Congregation") and its insurance carrier to review an order of the Industrial Commission awarding workmen's compensation benefits to the defendant Vincent Zacharias.
The applicant Zacharias was a skilled cabinetmaker and carpenter residing in the city of Kaukauna, and he maintained a small carpenter shop in which he did his cabinetwork and kept his tools. Prior to World War II he did odd jobs of carpentry and cabinetmaking, and then during the war he worked as a carpenter on war-construction jobs for other contractors away from Kaukauna. He returned to Kaukauna after the war and devoted his efforts to building homes which he erected on lots purchased by him, which homes he subsequently sold. Occasionally, after World War II, he undertook some repair jobs for other people but not many of them. After World War II he operated as a sole trader under the name of Kaukauna Home Improvement Company.
The plaintiff Congregation maintained at Kaukauna a church, a parochial school, and a rectory. Zacharias was a member of the Congregation and for approximately ten years prior to 1948 each summer he undertook odd repair jobs for the Congregation, billing the Congregation at a fixed hourly rate, the Congregation furnishing all materials. In the summer of 1948 Reverend Esdepsky, pastor of the Congregation, contacted Zacharias and asked him to come and do some repair work. At that time Zacharias was busy building a house for sale, and did not respond to the pastor's call right away, but sometime later the pastor again requested Zacharias to come and do such work and Zacharias then responded. Such repair work done for the Congregation in the summer of 1948 consisted of repairing broken desk drawers, sash cords, windows that were stuck, the bathroom floor in the rectory, and making adjustments on doors and rehanging them.
The final work undertaken by Zacharias for the Congregation which led to his injury was the repairing of some storm windows which were affixed to the outside of the church over stained glass windows at a considerable height. In order to work on these windows it was necessary to place a scaffold on brackets attached to two 40-foot ladders, the ladders being provided by the church, but Zacharias furnished the brackets and the plank for the scaffolding. In doing the work Zacharias needed the services of an assistant and requested the pastor to have the Congregation janitor help him. However, the janitor was busy getting the school in condition for the opening of the fall term, so the pastor informed Zacharias that he should get someone else to help him. Zacharias then secured the services of one of his own employees by the name of Schuler, and Zacharias paid Schuler $1.75 per hour for the time spent on the work for the Congregation but billed the Congregation $2 per hour for Schuler's time, this being the same amount at which Zacharias billed the church for his own time.
The testimony showed that Zacharias would either be given a list of work that needed to be done or was told orally what repair work was necessary and that then Zacharias would examine the work which needed repairs and determine how the repairs were to be made and what materials would be needed. The pastor admitted that he was not a skilled carpenter and would not have known how the repairs should be done. Zacharias testified that he did not rely on any orders or directions from the pastor as to the details of the work.
On August 18, 1948, while Zacharias was at work upon the scaffold, one of the brackets became unhooked causing the scaffold to tip, and he fell to the ground a distance of some 20 to 25 feet below, and was injured. He subsequently filed a claim for workmen's compensation with the Industrial Commission. A hearing was held on such application before an examiner of the commission. The examiner thereafter made findings of fact wherein he found that the work done by Zacharias for the Congregation was done under the direction and control of the pastor; that the pastor had the right to control the details of the work; that Zacharias never held himself out to the public as a general repairman; and that applicant was employed by the Congregation as an employee at the time of his injury. An interlocutory order was entered November 27, 1950, upon such findings for the payment of workmen's compensation to Zacharias. The Congregation and its insurance carrier then timely moved the commission for review of the findings and order, and an order was entered by the commission under date of December 19, 1950, affirming the findings and order of the examiner. The Congregation and its insurance carrier then instituted action in circuit court for review, and under date of May 6, 1953, the trial court entered judgment confirming the order of the commission. From such judgment the plaintiffs have appealed.
The issue on this appeal is whether Zacharias at the time of his injury was an employee of the Congregation or an independent contractor.
This court has repeatedly held that the principal test for determining whether the relationship of employer and employee exists is whether the alleged employer has the right to control the details of the work. Phaneuf v. Industrial Comm. (1953), 263 Wis. 376, 378, 57 N.W.2d 406; Thurn v. La Crosse Liquor Co. (1951), 258 Wis. 448, 46 N.W.2d 212; Hume v. Industrial Comm. (1945), 248 Wis. 5, 20 N.W.2d 573; and Fritz v. Industrial Comm. (1935), 218 Wis. 176, 260 N.W. 459.
Reverend Esdepsky, pastor of the Congregation, who engaged Zacharias to do the odd repair jobs in and about the Congregation's buildings, was asked this question and gave this answer:
" Q. Did you feel, Reverend Esdepsky, that you had the right to control the way in which Mr. Zacharias did the work? A. Yes."
However, Zacharias, a carpenter and cabinetmaker, was a skilled craftsman and at least some of the repair work which he did for the Congregation was such as required a skilled craftsman so to do, such as replacing flooring in the bathroom floor of the rectory and repairing broken desk drawers. Reverend Esdepsky, on the other hand, admitted that he was not a carpenter and therefore did not possess the skilled knowledge necessary to direct Zacharias in the doing of the details of his work. The testimony did disclose that on one occasion Reverend Esdepsky pulled Zacharias from one job he was doing before it was finished and put him on another, and also directed him as to what times he should do work in the church so as not to interfere with special church functions and services. However, any householder engaging the services of a plumber or other skilled craftsman would have the same right to specify the time such craftsman was to come to do the work, or to inform him of the time when certain rooms would be available or not available in which the work was to be done, without thereby affecting the status of such craftsman as an independent contractor.
In the case of Plencner v. Industrial Comm. (1946), 249 Wis. 370, 24 N.W.2d 669, the city of Wautoma engaged the services of the plaintiff Plencner, who was a skilled plumber, to remove roots from a sewer, and while so engaged Plencner was injured and thereafter sought to hold the city liable for workmen's compensation benefits. In its decision the court stated (p. 373):
"Plencner was the skilled workman who knew how to do the work, and when a skilled workman such as a plumber, carpenter, or electrician is engaged, whether it be a new or repair job, he is generally considered an independent contractor unless the intent of the parties to the contract be otherwise."
Both Plencner and Moon, the city street commissioner who engaged the services of Plencner, testified that Moon controlled the details of the work done by Plencner. In commenting on the effect of this testimony this court stated (p. 375):
"If these general statements were to stand alone they would probably be sufficient to warrant a recovery, but all the testimony must be taken into consideration in determining whether this is a fact or merely a conclusion stated by a witness."
The court then went on to point out that, while Moon had general supervision to see that the sewer was open (p. 373), "at best he had only general knowledge of what was necessary to be done in order to accomplish this end;" so that the testimony given that Moon did control the details of the work done by Plencner was but a conclusion and not a statement of fact.
Applying the principles laid down by this court in the Plencner Case to the facts in the instant case, we are of the opinion that the statement made by Reverend Esdepsky to the effect that he had the right to control the details of the doing of the work by Zacharias, when considered in the light of other evidence in the record, was but a conclusion of law of the witness, and not a statement of fact. Standing alone such testimony by Reverend Esdepsky, that he had the right to control the details of the work, might support the finding of the commission that Zacharias was the employee of the Congregation when injured, but the effect of such testimony is completely explained away by other facts brought out in the evidence. Such statement by Reverend Esdepsky therefore did not constitute "credible evidence, which, if unexplained, would support the finding of the commission." Fruit Boat Market v. Industrial Comm. (1953), 264 Wis. 304, 307, 58 N.W.2d 689; Motor Transport Co. v. Public Service Comm. (1953), 263 Wis. 31, 46, 56 N.W.2d 548; Hills Dry Goods Co. v. Industrial Comm. (1935), 217 Wis. 76, 85, 258 N.W. 336.
The attorney general contends that, because of the testimony of Reverend Esdepsky that he had the right to terminate the services of Zacharias at any time, such fact would in itself constitute evidence to support the commission's finding that the relationship of Zacharias to the Congregation was that of employee rather than independent contractor. In support of such contention our decision in Green Valley Co-op. Dairy Co. v. Industrial Comm. (1947), 250 Wis. 502, 509, 27 N.W.2d 454, is cited, wherein it was stated that where an employer has the right of summary discharge "he obviously has the right to control details of the work." However, the alleged employee in the Green Valley Co-op. Dairy Co. Case was a cheesemaker working in the plant of the dairy, and the dairy contended that he was an independent contractor because he was paid on the basis of hundredweight of cheese manufactured by him. In such a fact situation the right of summary discharge by the alleged employer is a strong circumstance tending to establish a right to control details of the doing of the work. On the other hand, if the right to terminate the services of skilled craftsmen, such as plumbers, electricians, and carpenters, who are called in from the outside to render skilled services of their craft, is to be the test of whether an employee or independent-contractor relationship exists, no finding by the commission that such a skilled craftsman was an employee and not an independent contractor could ever be subject to court review even if all the facts of the case, as here, were undisputed. A skilled craftsman engaged on a time-and-material basis, and not under a contract for the entire job, is always subject to having his services terminated at any time by the person engaging him. We do not consider such right of termination as applied to the services of skilled craftsmen, who are engaged in an independent calling of their own, would alone be sufficient to support a finding of an employee-employer relationship. This is especially true in light of our statement in the Plencner Case, supra, that such skilled craftsmen are usually considered to be independent contractors.
The attorney general also maintains that sec. 102.07 (8), Stats., 1947, is controlling in the instant case on the question of the relationship of Zacharias to the Congregation being that of employee. Such statute provides as follows:
"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 employee 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."
It is evident that the examiner of the commission had this statute in mind when he found that Zacharias never held himself out to the public as a general repairman. Apparently it was the theory of the examiner that the repair services rendered by Zacharias to the Congregation were something apart from his calling as a builder of homes, and it was in the latter capacity alone that he held himself out to the general public. However, Zacharias had been known and recognized in the community for many years as a skilled carpenter and cabinetmaker. Even after World War II, when he devoted his chief efforts to building homes, he still occasionally did odd jobs of carpentry work. We do not believe that his activities in doing repair work for the Congregation can be segregated from his home-building activities or general carpentry business. It is our conclusion that as a matter of law Zacharias was maintaining a separate business in which he held himself out to render service to the public and, therefore, sec. 102.07 (8), Stats., has no application to the determination of the issue before us on this appeal.
In summary, we have a situation here where Zacharias was a skilled craftsman employed to do repair work which required the exercise of the skill of his craft; the pastor of the Congregation who engaged him did not possess the necessary skill or knowledge of carpentry which would enable him to control the details of the work done by Zacharias, the pastor being only concerned with the end result of each task performed by Zacharias; and Schuler was employed by Zacharias to assist him and was paid $1.75 per hour by Zacharias, who, in turn, billed the Congregation for Schuler's services at $2 per hour. These undisputed facts clearly establish that the relationship of Zacharias to the Congregation was that of independent contractor and not an employee, and completely explain away any other facts in the record which, standing alone and unexplained, might tend to support the commission's findings. Therefore, the finding of the commission of an employee-employer relationship cannot stand and the order based upon the same must be reversed.
By the Court. — Judgment reversed and cause remanded with directions to enter judgment setting aside the order of the Industrial Commission.