224 Wis. 485 | Wis. | 1937
The appellants, Brower and the Standard Accident Insurance Company, contend that they are not liable for Tollefson’s causal negligence because he was operating his own truck as an independent contractor, and that the court erred in ruling, on motions after verdict, that Tollef son was acting as an employee of Brower. The existence of that relationship had to be established by the plaintiffs to entitle them to recover from Brower and his insurance carrier for Tollef-
Those undisputed facts do not establish that Brower had any such right of control, under his contract with either Tol-lefson or the Sturgeon Bay Company, over the details of the work performed by Tollefson, or that Brower or his agents ever attempted to exercise any such control as to constitute him the employer of Tollefson. On the contrary, those facts rather compel the conclusion that Tollefson was an independent contractor. At all events, there is an absence of proof to
“Mere possibilities leave the solution of an issue of fact in the field of conjecture and speculation to such an extent as to afford no basis for inferences to a reasonable certainty, and in the absence of at least such inferences there is no sufficient basis for a finding of fact. It will not do to reach a conclusion in favor of the party on whom the burden of proof rests by merely theorizing and conjecturing. There must at least be sufficient evidence to remove the question from the realm of conjecture.”
And, as we said in Hills Dry Goods Co. v. Industrial Comm. 217 Wis. 76, 84, 258 N. W. 336,—
“The inference must not only be rational, but it must be a logical deduction from the established facts and. not one of several inferences which might with equal propriety be drawn from the same facts.”
That right to control the details of the work by the party for whom it was performed is of crucial significance when there is an issue as to the nature of the relationship. As we said in Kolman v. Industrial Comm. 219 Wis. 139, 141, 262 N. W. 622,—
“The most significant indicium of an independent contractor is his right to control the details of the work. The principal test to be applied in determining whether one rendering services for another is an employee or an independent contractor is whether the employer has the right to control the details of the work. This is the dominant test, although there are other things to be considered, such as the place of the*491 work, the time of the employment, the method of payment, and the right of summary discharge of employees.”
To the cases cited in support of that rule, there can be added Henry Haertel Service, Inc., v. Industrial Comm. 211 Wis. 455, 248 N. W. 430; Kassela v. Hoseth, 217 Wis. 115, 258 N. W. 340 (in which there was an issue as to the status of a person using his automobile in the continuous performance of work for another); and also York v. Industrial Comm. 223 Wis. 141, 155, 269 N. W. 726, in which we also recognized the rule that the mere procuring or controlling of the end result of work, by one for whom it is performed, without directing the means or details in which it is performed, does not necessarily constitute the person who performs the work an employee. As we then said, “Any employer of an independent contractor has that right.” That rule was applied in Medford L. Co. v. Industrial Comm. 197 Wis. 35, 221 N. W. 390, in holding that a provision in a contract which reserved to a party for whom work was performed only such supervision or control as was necessary to see that the ultimate result contracted for was produced, did not constitute the one who was to perform the work an employee of the other. Consequently, the mere fact that Brower saw to it that the stone was hauled to keep the job moving in order to accomplish the end result of his contract with the Sturgeon Bay Company, did not constitute Tollefson his employee.
However, although there was no evidence of any right or attempt on Brower’s part tp direct or control the details of Tollefson’s performance of lais work, the trial court finally said in his decision,—
“While it is true, Brower did not control the details as to how Tollefson hauled the stone, yet I do not doubt but that he had the power to control them if he wished dr to kick Tol-lefson off the job if he refused to obey, — and Tollefson would*492 have no redress for any breach of contract he claimed to have had. Tollefson then was an employee instead of being an independent contractor.”
There is no logical or decisive basis for that conclusion. The mere fact that Brower could have put Tollefson off the job without being liable for breach of contract, if Brower had attempted to exercise control of the details of Tollefson’s performance and he had refused to obey, does not establish that he was an employee, instead of an independent contractor. In the absence of a contract binding the parties for a specified period or quantity, Brower would be no more liable for breach of contract, upon putting Tollefson off the job as an independent contractor, than he would be for discharging him as an employee. In either event, there would be no liability in that respect, and consequently, the existence of the mere right to put Tollefson off the job is of no significance.
The court also was of the opinion that the insurance policy, issued to Brower by the Standard Accident Insurance Company, afforded some proof that Tollefson was an employee of Brower. On that subject the court, after the statement above quoted, that “Tollefson then was an employee instead of being an independent contractor,” added,—
“The parties so considered him, — at least, both parties intended Tollefson should be covered by the policy and the premium was based thereon. The parties themselves classified the risk. They inserted in typewriting, Item 8: ‘The automobiles insured hereunder are not owned by the named assured and this policy shall not cover any automobiles owned in full or in part by the named assured.’ Both Brower and the Insurance Company knew the policy was to cover the automobiles Brower hired to work on the job.”
Although it is evident from the wording of “Item 8” (which is a typewritten insertion in the “Declarations” attached to the policy) that the policy was not to “cover any automobiles owned in full or in part by the named assured,”
“The policy to which this endorsement is attached is extended to cover the loss from the liability imposed by law upon the named assured for damages on account of bodily injuries, . . . sustained or alleged to have been sustained as the result of an accident occurring, during the effective period of this endorsement, by reason of the maintenance, operation, or use of any automobile, tractor, or trailer, of the type specified in said schedule and used for the purposes specified in said policy, hired by the named assured.”
It is manifest that the indemnity secured by Brower under that provision is only for “loss from the liability imposed by
•’Neither is Tollefson’s status as an independent contractor altered or affected by the facts that the prenlium on the policy was based in part on the amounts paid to him by Brower, or that the latter’s contract with the Sturgeon Bay Company required him to carry insurance that would fully protect both of them in all cases against damages to the property and travelers on the highways. It begs the issue to contend that
It follows that Brower is not liable for the damages sustained by Pichette as the result of Tollefson’s negligence; and that, therefore, the appellants were entitled to have the complaint dismissed as to them.
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment dismissing the complaint against the defendants C. D. Brower and the Standard Accident Insurance Company.