24 N.W.2d 669 | Wis. | 1946
This appeal is from a judgment of the circuit court for Dane county entered April 6, 1946, confirming an order of the Industrial Commission dated May 5, 1945, dismissing the application of Frank Plencner for compensation and medical expenses by reason of an injury received while in the employ of the city of Wautoma, a municipal corporation. The material facts will be stated in the opinion. At the hearing before the Industrial Commission the parties confined their proof to the question of whether Frank Plencner was an employee of the city of Wautoma entitled to receive workmen's compensation for an injury received while working on the city sewer system. A portion of the sewer system in the city of Wautoma became clogged by roots of trees growing into it. Moon, as street commissioner, was charged with the duty of keeping the streets and sewers in repair, and when he reported this sewer condition to the mayor and the sewer committee they told him "to go ahead and hire some men, dig it up and then Plencner to tear it up and re-lay it then." Moon was not a plumber. Plencner had been engaged in the plumbing, heating, and repairing business for himself for about eleven years, and had complete plumbing tools and equipment. He worked from his home and kept his materials in his garage and truck. His name and business *372 were painted on his truck and printed on his stationery. The number of employees he had depended on the volume of his business but at no time did he have to exceed five employees. He carried compensation insurance until August, 1943, when because of war conditions and inability to get help he dropped his insurance and after that had no employees. He continued in this work as an individual for anyone who desired his services after August, 1943, but discontinued doing contract work or bidding on jobs.
Moon testified that when he went to engage the services of Plencner he told him what he wanted done and he (Plencner) "went ahead and done it." Plencner testified that when Moon came over and asked him to open up the sewer he told him he would do that much but he could not spend any time digging. Two men were employed by the city to do the digging, and the city of Wautoma obtained a machine from the city of Oshkosh to be used for cutting the roots in the sewer. The city furnished some sewer pipe and cement for this work. Plencner was called to instruct the men how to curb the opening, and then went on to do some plumbing work elsewhere in the city. When the sewer pipe was reached Plencner came back and opened it so the roots could be removed. Several lengths of city fire hose were placed in the pipe to help clean it out. Moon, Plencner, and the two men employed by the city did this work, and Plencner claims he was injured while assisting in removing the hose from the sewer. When the sewer was cleaned Plencner replaced some iron soil pipe leading into a residence, Plencner furnishing the soil pipe, lead, and leading machine to complete the connection. He also replaced a length of sewer pipe which was furnished by the city. The street commissioner certified to the city council the number of hours put in by the men doing the digging, and Plencner billed the city on his own stationery at $1 per hour for the time he worked on this job, together with his charge for materials furnished. *373
On this statement of facts the Industrial Commission found that Plencner was an independent contractor and not entitled to compensation under the act. Appellant contends that Moon, as street commissioner, had the right to control the details of the work as required in Tesch v. Industrial Comm. (1930)
In Kolman v. Industrial Comm. (1935)
The method of payment was different from the other employees. Plencner kept his own time, submitting a bill to the city for his time and materials, and there was no deduction for withholding tax or social security. The time of the other workmen was certified to the city by Moon. Plencner also furnished the tools that were necessary, being the tools of a plumber. He furnished soil pipe, lead, oakum, and necessary equipment to melt the lead and pour it. If there is any evidence that Plencner had the right to control the details of his work while repairing this sewer the commission's finding that he was not an employee at the time of the alleged injury is conclusive.Huebner v. Industrial Comm. (1940)
Plaintiff claims this case is ruled by Woodside School Dist.v. Industrial Comm. (1942)
It is also argued that both Moon and Plencner testified that Moon controlled the details of the work. 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. If there are inconsistencies in the testimony of Plencner and Moon it was the function of the commission to reconcile the inconsistencies in the testimony. Wisconsin Granite Co. v. Industrial Comm. (1934)
The question then arises whether plaintiff as an independent contractor qualifies for compensation under sec.
"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 *376
employer subject to tiffs chapter or has not complied with the conditions of subsection (2) of section
Plaintiff claims this case is also ruled by Valentine v. IndustrialComm. (1944)
Plaintiff argues that by reason of the fact that he did not take contracts after August, 1943, he did not hold himself out as a person who could be employed by the public to do this particular type of work. The testimony showed that this was his means of livelihood and all that he did in 1943 was to reduce his operations in accordance with conditions that existed at that time, and continued to exist. He performed services as a plumber for everyone who requested them, and we consider that the commission properly determined that he held himself out to the public as a person engaged in the heating and plumbing business.
By the Court. — Judgment affirmed.
FOWLER, J., dissents. *377