Visiting Nurse Ass'n v. Industrial Commission of Wisconsin, 195 Wis. 159

Visiting Nurse Ass'n v. Industrial Commission of Wisconsin

195 Wis. 159 | Wis. | 1928

Vinje, C. J.

It seems so clear to us that the Gridley Company hired nursing service and not a nurse that there is no necessity for a detailed argument to sustain that view. Among some of the salient facts sustaining it are these: Miss Hers never talked with any member or officer of the Gridley Company before she went there to work; nothing was said between them as to hours of work or wages. She continued to be paid by the Visiting Nurse Association. It could discharge her. The Gridley Company could not. Miss Kowalke testified: “The choice of nurse was left entirely to the Visiting Nurse Association as to the permanent nurse and relief nurse.” The Visiting Nurse Association was to furnish necessary nursing service for the Gridley Company, not asked to hire any particular nurse for it. The Visiting Nurse Association did not engage in the business of hiring nurses for private parties according to the testimony, but furnished nursing service' to industrial plants.

The case of Cayll v. Waukesha G. & E. Co. 172 Wis. 554, 179 N. W. 771, is much relied upon by appellant as being identical with this case. There Massino, the employee of Cayll, voluntarily consented to transfer his employment from Cayll to the Waukesha Gas & Electric Company, which temporarily needed some extra men. While in the employ of *164the company he was injured, and it was held the Waukesha Gas & Electric Company was liable for compensation. Here the Visiting Nurse Association sends Miss Hers to perform services which it has contracted to perform and for which it receives pay in excess of what it pays the employee sent to perform it. The Visiting Nurse Association was not an employment agency for nurses where private parties could go and hire them, but it was in the business of furnishing nursing service for a profit. The Gridley Dairy Company paid it $10 or $15 more per month than it paid Miss Hers. True, it says it spent this money for giving nurses a vacation or for sick leave. How it spent the extra money is quite immaterial. It could spend it any way it saw fit. We have here a case where a party furnished professional services for a profit — quite a different case from Cayll v. Waukesha G. & E. Co. 172 Wis. 554, 179 N. W. 771. In that case the original employer did not'profit by the transaction at all. Just as an accommodation he let the gas company have one of his men, and he paid the man all he received from the gas company. Generally where a firm or corporation agrees to furnish professional services, the man or employee sent to perform them remains the employee of the firm or corporation that agrees to furnish the service — especially where he continues to receive the same pay as before and his employer profits by the transaction. Much stress is also laid upon the fact that after Miss Hers went to work for the Gridley Company she was daily instructed by it whom she should attend and what she should do, and therefore she or the Visiting Nurse Association was not an independent contractor, but an employee of the Gridley Company, citing Madix v. Hochgreve B. Co. 154 Wis. 448, 143 N. W. 189, and kindred cases. Here the primary question is not one of employee and independent contractor. The question is, In whose employ was Miss Hers — in that of the Gridley Company or the Visiting Nurse Association? There can be no claim that *165she was an independent contractor. Whether the Visiting Nurse Association was one need not be decided. It is enough for the purposes of this case that it agreed to furnish nursing service for the Gridley Company at so much per month and agreed to send a nurse of its. selection to perform that service. Such an arrangement necessarily required that she should receive from the Gridley Company directions as to whom her services should be rendered.

The fact that Miss Hers occasionally did some first-aid work cannot change the relation of the parties even if such work was not contemplated as coming within her nursing duties.

We are asked by the defendants to review the Commission’s finding as to the relations of the Gridley’s Mutual Benefit Association to the Gridley Dairy Company set out in the statement of facts. The result of the decision renders that unnecessary, and besides it may be questionable whether that can be reviewed short of an action brought by the parr ties. Here only the plaintiff has brought an action, and it is not interested in the question.

By the Court. — Judgment affirmed.-