The perusal and consideration of the record in this case in the light of other cases recently before the court has led us to reconsider some of the essential features of the workmen’s compensation act (ch. 102, Stats.), especially those regarding the determination of questions of fact.
The act (sec. 102.23) also provides that the findings of fact made by the commission acting within its powers shall in the absence of fraud be conclusive and that the award is subject to review, only upon the grounds stated in the section.
Under these provisions of the act it has been held consistently that if there is evidence which supports the finding of the commission, even though it be against the great weight or clear preponderance of the evidence, the finding may not be disturbed by the court on review.
The state of the record in this case leads us to consider what is meant by a finding of fact as that term is used in the statute. In the first place, a finding of fact is only necessary when there is a conflict in the testimony. The term was well understood in the law at the time of the adoption of the workmen’s compensation act. In Potter v. Brown County,
The only disputed question in this case was whether or not Tesch was an employer of Brustman. The response made to that situаtion by the findings of the commission was “that on said day said Emil Brustman was employed by said Edwin Tesch.”
In a case decided herewith (Allaby v. Industrial Comm., ante, p. 611,
In Habrich v. Industrial Comm., decided December 3, 1929 (ante, p. 248,
In Badger Furniture Co. v. Industrial Comm., decided November 5, 1929 {ante, p. 127,
These claims all involved the same dispute, the question being, Was the injured person an employee ór an independent contractor? yet the findings of the commission give no clew to the facts in these various cases, which an inspection will disclose were widely variant. A statement of the decision does not constitute a compliance with the requirements of sec. 102.18. The findings recite quite fully the undisputed facts; this no doubt in response to the statutory injunction that the findings of the commission shall cover “all the facts- involved in the controversy.” If the commission is of the opinion that the facts are undisputed it should indicate that conclusion by its finding. If the facts are in dispute the controversy should be resolved one way or the other. Upon the disputed question in each of these cases the so-called finding is in fact the decision, of the commission. The mere fact that it is found under the title. “Findings of fact” does not affect its real character.
This leаds us to the consideration of another matter. The very term findings of fact indicates a determination of what is established by all of the evidence in the case. The mere
We do not say that formal findings such as should be filed by a circuit judge in cases triеd by the court are required. There should be at least an informal recital of the facts which the commission finds to be established. For some years a document designated a memorandum accompanied the so-called findings of fact. That answered the requirements very well in most cases. Voelz v. Industrial Comm.
Differentiation of findings of fact and conclusions of law is admittedly often a difficult task. Probably no better rule of thumb can be devised than that suggested in Weyauwega v. Industrial Comm.
“Whether a finding is an ultimate fact or cоnclusion of law depends upon whether it is reached by natural reasoning or by the application of fixed rules of law.”
That is, where the ultimate conclusion can be arrived at only by applying a rule of law, the result so reached embodies a conclusion of law and is not a finding of fact. Consequently when, as in this case, the сommission says,
The attempt of the attorney general to point out evidence which supports the findings drives him to the necessity of supporting the finding of the commission by the following:
Cowling testified: “Well, I was figuring on building a house and Mr. Tesch wanted to figure on it and so I knew Mr. Tesch for quite a while and I thought I could help him by leaving him or letting him do the work.
“Mr. Tesch was the man I hired and was the only man I was to pay; I didn’t have anything to do with the rest of the men at all.”
On cross-examination he was asked:
“Q. Did you give any directions to any of these men .while they were doing the work? A. No one, only to Mr. Tesch.
“Q. Had you ever talked to any of the workmen conсerning this work before the accident? A. No, sir, I hadn’t.
“Q. Whenever you wanted to give any directions as to what was to be done on that job, to whom did you go? A. Mr. Tesch.”
One of the carpenters testified:
“Q. Who was the foreman on the job if anybody? A. Mr. Tesch would have been the foreman because he had charge of the whole thing.”
*623 And the further statement of Cowling:
“I didn’t want control of the work myself because I had all I could control right where I was.”
He also points to the fact that Tesch at some time prior to his employment by Cowling had done contracting, and that after the accident Tesch and Cowling did enter into a contract for the completion of the work.
The attempt to support a finding by taking bits of testimony out of their context and considering them alone apart from other undisputed circumstances in the case, and then claiming that a finding supported in that manner is beyond review because supported by testimony, is wholly inconsistent with the fundamental principles embodied in the legal concept of a hearing as that term is used in American law. Considered in connection with the remainder of the testimony, the portions quoted become wholly insignificant and tend to support the opposite conclusion. Witnesses sometimes attempt to state legal conclusions rather than the facts. This is well enough where there is no controversy. Even expert witnesses are not permitted to express an opinion with respect to the issues in the case, but only what conclusion should be drawn in the light of expert knowledge from certain established facts. The mere fact that a witness says he was hired or that he was employed, or that he was under or not under the act, or other similar matters is not evidence; it is simply a statement by the witness of what he thinks the legal relation of the parties is, after applying the law to the facts. In making his determination he may consider facts not in evidence at all; he may be and very likely is in error as to the law. His conclusions, which are really decisions, are not evidence.
A. may testify that he is the child and legal heir of X. This is well enough ordinarily. Suppose, however, the matter under investigаtion is whether X. was not, prior to his
The distinction between an employee and an independent contractor is not always easy to define. Commencing with the case of Weyauwega v. Industrial Comm. and ending with Badger Furniture Co. v. Industrial Comm., supra, this court has endeavored to point out the things to be considered in determining the nature of the legal relationship where one person is rendering services to another. In Habrich v. Industrial Comm., supra, it was said that in the absence of any showing to the contrary, where the facts appear that one was rendering service to another, the presumption was that the relation of employer and employee existed. In this case it is claimed in the briеf for the respondent that because Tesch was in' the contracting business, because he paid the men, because the men employed at the time had formerly been in the employ of Tesch, that after the accident the work was completed by Tesch under a contract, and the fact that
It is argued that Tesch had control of the details of the work. The evidence shows that he was employed by Cowling for that very purpose. Cowling knew nothing about carpenter work; he had neither the time nor the ability to direct the work. The fact that the manager of a great corporation may initiate its policies and have control over every detail of its work does not make him an independent contractor. As a matter of fact there are many incidents common to the employer-employeе relationship and the employee-independent contractor relationship. Both the employee and the independent contractor are in a sense in the service' of the employer. In all the cases considered from Weyauwega v. Industrial Comm. to Badger Furniture Co. v. Industrial Comm., supra, it has been pointed out that the thing which distinguishes the one relation from the other is the right оf control as to the details of accomplishing the result con
In the Badger Furniture Company Case, supra, the injured person was a salesman. He could proceed as he saw fit, visit such territory as he desired, spend such amounts of time as he chose, and was under no obligation to respond to suggestions or directions made by his employer, and it was held that the mere fact that the employer and independent contractor co-operated did not affect the relationship existing between them.
In this case it appears without dispute that in the course' of the work Cowling changed his mind and concluded to have the house torn down entirely instеad of only partially as first planned; it was to be built to suit him; Tesch could not employ other men without Cowling’s authority; the materials were furnished by Cowling; no result was contracted for; in fact no one know what the operations would be as they were subject to change from time to time.
As was pointed out in the Badger Furniture Company Case, many things may and should be taken into consideration in determining where the right of control as to details lies. No one of these things is to be seized upon as determinative of the issue. In Kneeland-McLurg L. Co. v. Industrial Comm.
There are border-line cases. Whether an artist employed to give a performance is an employee or independent contractor depends upon the right to control the details of the performance. Miller & Rose v. Rich,
It clearly appearing that Tesch was not the employer of the deceased husband of the claimant, the judgment of the circuit court affirming the award should be reversed, and the cause remanded with directions to enter judgment setting aside the award of the Industrial Commission.
By the Court. — It is so ordered.
Notes
For interesting discussion of findings and related matter see Maeder Steel Products Co. v. Zanello,