10 Wis. 2d 405 | Wis. | 1960
We are here concerned with the troublesome question of a so-called “loaned employee.”
The issue before the commission was whether Vernon K. Schinke at the time he incurred his injury continued to be
The essential tests to be applied in determining whether a loaned employee retains his employment with his original employer, or becomes the employee of the special employer, are set forth in Seaman Body Corp. v. Industrial Comm. (1931), 204 Wis. 157, 163, 235 N. W. 433, as follows:
“The vital questions in controversies of this kind are:
“(1) Did the employee actually or impliedly consent to work for a special employer?
“(2) Whose was the work he was performing at the time of injury?
“(3) Whose was the right to control the details of the work being performed ?
“(4) For whose benefit primarily was the work being done?”
Of these four stated tests, the most-important one is the first, viz., did the employee actually or impliedly consent to work for the special employer. Hanz v. Industrial Comm. (1959), 7 Wis. (2d) 314, 96 N. W. (2d) 533. Mortimer Levitan, in his article entitled, “Loaned Employees,” 27 Wisconsin Bar Bulletin, October, 1954, pages 7, 8, succinctly states:
“An employee simply cannot be transferred to a special employer without his consent.”1
“In compensation law, the spotlight must now be turned upon the employee, for the first question of all is: Did he make a contract of hire with the special employer? If this question cannot be answered ‘Yes,’ the investigation is closed, and there is no need to go on into tests of relative control and the like.”
The finding by the commission that Vernon Schinke at the time of injury was the employee of the special employer, the lumber company, is a finding of an ultimate fact which satisfies the requirements of sec. 102.18 (1), Stats. Hans v. Industrial Comm., supra. This is true even though the question of whether an employee-employer relationship exists presents a question of law. However, in a situation in which the facts are undisputed and but one reasonable inference can be drawn therefrom, such finding of ultimate fact constitutes but a conclusion of law which is not binding upon a reviewing court. Brown v. Industrial Comm. (1960), 9 Wis. (2d) 555, 569, 101 N. W. (2d) 788, and Van Roy v. Industrial Comm. (1958), 5 Wis. (2d) 416, 425, 92 N. W. (2d) 818.
The appellants contend that the finding by the commission, that Vernon Schinke at the time of his injury was the employee of the lumber company, is such a conclusion of law. In support of such contention it is argued that from the undisputed testimony it appears that he never intended to become the employee of the lumber company, and they point to the following testimony given by him:
“Q. Was it your intention, when you went over there, that you were working there as an employee of the dairy or of the lumber company? A. I was an employee of the dairy.
*411 “Q. Were you asked to go over there and work as an employee of the lumber company? A. No. . . .
"Q. When you went over to the lumberyard on June 5th to help move this conveyor, was it your intention to sever or cut off your relationship with the dairy as an employee? A. No, sir.”
We do not consider that such quoted testimony is necessarily controlling of the issue, or that it gives rise to but one reasonable inference. This testimony is subject to the interpretation that the witness did not intend by going over to the lumber company’s premises for fifteen or twenty minutes and helping move the conveyor he gave up his employment with the dairy company which carried with it the salary of $470 per month. If he had been called home by his wife to perform some temporary task at home, and had been asked the same questions with respect to that, as he was asked about the incident in question, he would undoubtedly have given the same answers.
As 1 Larson, Law of Workmen’s Compensation, p. 712, sec. 48.10, points out, the consent to enter the employment of the special employer may be implied from the employee’s acceptance of the special employer’s control and direction. In the instant case Vernon, in helping move the conveyor, accepted the exercise of the control and direction of the project by his brother Warren, an executive of the lumber company. On this point the following questions were put to Vernon and he gave the following answers thereto:
“Q. He [Warren] generally was the person who was telling the rest of you what he wanted done on his property there, is that right? A. Yes.
“Q. He was telling the rest of you how to go about your work to accomplish what was to be done? A. That is right.
“Q. As far as that specific job goes, at that time Warren was the man who had the right to control what was being-done there? A. Yes. He was in charge of it. Yes.”
“Where an employee enters the service of another at the command and pursuant to the direction of the master, no new relationship is created. While the employee may be subject to the direction of the temporary master, he is there in obedience to the command of his employer, and in doing what the new master directs him to do he is performing his duty to the employer who gave the order.”
See also Boehck Equipment Co. v. Industrial Comm. (1944), 246 Wis. 178, 188, 16 N. W. (2d) 298.
It, therefore, is crucial to the resolving of the instant appeal to determine whether Vernon, when he undertook to help out the lumber company in moving the conveyor, did so pursuant to a command of the original employer, the dairy company. If he did not, then the fact that he submitted to the control and directions of his brother Warren would support an inference of implied consent to become the lumber company’s employee.
Vernon testified that he went over to the lumber company premises to move the conveyor because he was “told” by his brother Walter to do so, and that he regards Walter as his “immediate boss” at the dairy. However, Vernon was the vice-president of the dairy company and he also testified that Walter and he, as executives, had approximately the same
"Q. You were the one who would decide if you had the time? A. That is right.
“Q. No one forced you to go over there? A. No. Nobody forced me.”
In view of the foregoing facts, the commission had the right to infer that Vernon did not go over to the lumberyard to move the conveyor because he was commanded to do so by any superior officer. It could conclude that Walter in asking Vernon to do so was merely acting in the capacity of a messenger conveying the message that the lumber company was requesting temporary assistance as it had in the past. It is a further reasonable inference based upon past practice that Vernon exercised his independent judgment in acceding to the request.
In the absence of any command from the original employer that Vernon assist the lumber company in moving the conveyor, we deem the fact, that the work being done at the time of the accident only benefited the special employer and not the original employer, also tends to support an inference of implied consent to enter the employment of the special employer. It is significant that in most of the cases decided by this court, in which it has been held that the loaned employee continued in the employ of the original employer, the original employer derived some benefit from the work being done for the special employer.
While the determination of the commission, that Vernon was the employee of the lumber company at the time of the injury, must be sustained, this does not dispose of the appeal. This is because of a further issue raised by the appellants. Such issue is that there is no evidence in the record to sustain the finding of the commission that Vernon’s weekly compensation rate for temporary total disability is $45.50.
Unfortunately, no testimony was adduced in the hearing before the examiner as to what was the going rate for manual labor in the community as of June 5, 1957. The necessity of such required proof was called to the attention of the examiner at the start of the hearing by counsel for the appellants. Furthermore, the appellants in their complaint in the circuit court attacked the finding of a $45.50 benefit rate. The fact that Vernon was paid $470 per month as an executive of the dairy company is not relevant on the issue of the going wage for manual labor in Springfield and vicinity. It is obvious that an employer would not pay an executive’s salary to an employee engaged to pile lumber or load or unload coal.
In some situations it may be proper for the commission to take judicial notice that the going rate of certain occupations in a particular locality equals or exceeds the statutory maximum specified in sec. 102.11 (1), Stats. 1955. However, this court is not in a position to take judicial notice that the going wage for manual labor in the rural hamlet
It is our conclusion that the cause must be remanded to the commission to make a finding as to the going wage rate for manual labor in Springfield and vicinity in June, 1957.
By the Court. — Judgment reversed, and cause remanded with directions to set aside the interlocutory order of the commission and the finding of fact which established the benefit rate, and to remand the proceedings to the Industrial Commission for further proceedings not inconsistent with this opinion.
As cases supporting such statement the author cites: Spodick v. Nash Motors Co. (1931), 203 Wis. 211, 213, 214, 232 N. W. 870; Rhinelander Paper Co. v. Industrial Comm. (1931), 206 Wis. 215, 217, 239 N. W. 412; Wisconsin Holding Corp. v. Industrial Comm. (1934), 215 Wis. 67, 71, 72, 254 N. W. 115; Northern Trust Co. v. Industrial Comm. (1939), 231 Wis. 133, 285 N. W. 339; Hudson v. Industrial Comm. (1942), 241 Wis. 476, 6 N. W. (2d) 217; Boehck Equipment Co. v. Industrial Comm. (1944), 246 Wis. 178, 187, 188, 16 N. W. (2d) 298.
Typical of these cases are: Braun v. Jewett (1957), 1 Wis. (2d) 531, 85 N. W. (2d) 364; Edwards v. Cutler-Hammer, Inc. (1956), 272 Wis. 54, 74 N. W. (2d) 606; Siblik v. Motor Trans