The only question on this appeal is whether there is credible evidence to sustain the commission’s finding that at the time of injury the defendant Kufner was an employee of plaintiff within the provisions of the state com
Plaintiff was engaged in extensive logging operations. In October, 1928, Kufner and Sam Bumblich wоrked together as employees of plaintiff in sawing and placing skid-ways, for which each was paid $2.70 per day. About a week before Kufner wаs injured on November 2, 1928, plaintiff’s woods superintendent orally arranged with Kufner to have him cut and grade a sleigh road through the timber. The work required the removal of trees and undergrowth for'a sixteen-feet-wide passageway, and the grading and bridging of a ten-feet-wide sleigh road. At Kufner’s request Sam Bumblich wаs to work with him, and they were to share equally the compensation of $6 for each one hundred feet of completed road. Beforе Kufner consented to do the work, the woods superintendent took him over the proposed course of the road and indicated its loсation by blazing trees. There was no agreement that Kufner was to complete the work or be continued by plaintiff on that work until the road was completed for any prescribed' distance. The work was to commence at once and continue until prevented by cold weathеr, but there was no agreement as to the amount or length of time that was to be devoted to the work. Plaintiff continued to provide Kufner and Bumblich with аll necessary implements, and also with board and lodging at a charge of $1 per day. They went to and from their daily work with plaintiff’s other employеes. There was also some evidence that it was plaintiff’s custom to deduct $1 per month for hospital services, from the earnings of men emрloyed in such road-construction work. As Kufner and Bumblich knew how that kind of work was usually done and had to be done to meet plaintiff’s requirements, there was no occasion for any detailed direction or supervision by plaintiff. They .worked along the course which had been blazed by plaintiff’s superintendent, and he came out for
No credit was given Kufner or Bumblich in plaintiff’s regular time book for the work pеrformed by them on those six days. After Kufner’s injury, plaintiff settled with Kuf-ner’s father for the son’s share of the work by paying him at the rate of $6 per one hundred feet for one half of 1,260 feet which Kufner and Bumblich had completed when the injury was sustained.
As Kufner was injured while in the service of plaintiff, it will be presumed, for the рurposes of the compensation act, that he was an employee, and the burden of proving otherwise is upon the party seeking to defeat compensation. Habrich v. Industrial Comm.
“To say that a person who had, up to the time here in question, been a common lumberjack laborer, is suddenly transformеd into an independent contractor while doing work for the same corporation under which he had been an employee, just because he was thereafter to be paid by piecework instead of being paid by the month, is attempting to clothe him with a dignity and impose upon him responsibilities which neither the plaintiff nor Kufner ever contemplated.”
Under the circumstances in this case, the question of status cannot be sоlved by resorting merely to the usual test of whether the proprietor, for whom the service was being performed, retained the right to control the details of the work. There was no express agreement between the parties
On the other hand, in this case there did not exist any of the other circumstances which in the cases relied upon by appellant were considerеd of controlling conseq'uence in overcoming the presumption, above referred to, that a man engaged like Kufner continues to be an employee of the person for whom he was rendering service when injured. In this case we have no such explicit contractual рrovisions as in Kneeland-McLurg L. Co. v. Industrial Comm.
In the absence of proof which negatived the presumption that Kufner continued in the emplоyment of plaintiff while he was continuing in the service of plaintiff, the findings and conclusions of the Industrial Commission were warranted, and its award was rightly affirmed by the judgment of the circuit court.
By the Court. — Judgment affirmed.