On November 30, 1948, the defendant Robert L. Hendrickson, who was then twenty-two years of age, was injured while operating a corn picker on the farm of the plaintiff Bernard Gant in Lafayette county, which injury necessitated the amputation of his right hand and forearm. Gant at the time of the accident carried a policy of workmen's compensation insurance issued by the plaintiff Threshermen's Mutual Insurance Company, and his act in so doing constituted an election by Gant under the provisions of sec. 102.05 (3), Stats., to accept the provisions of the Workmen's Compensation Act.

Robert filed a claim for workmen's compensation with the Industrial Commission and a hearing was held thereon before an examiner. Under date of April 14, 1950, the examiner filed findings of fact in which he found that Robert at the time of injury was not the employee of Gant but was the employee of Robert's father, Oren Hendrickson. The order dismissed the application. Therefrom Robert petitioned for review by the commission, and the commission set aside the examiner's order pending such review. On August 25, 1950, the commission filed findings of fact whereby it found that Oren Hendrickson (father of Robert and hereinafter referred to as "Mr. Hendrickson"), David Hendrickson (brother of Robert), and Robert were engaged in farming operations as partners in 1948; that Robert at the time of his injury on Gant's farm was repaying Gant for services Gant had rendered to assist the Hendricksons earlier in the season under a general custom among farmers to exchange work in return for work by one for another; that in view of such custom an implied contract was set up between the parties which was. functioning at the time of Robert's injury; and that Gant had directed Robert as to where the corn picking should be done by Robert on Gant's farm. The commission also included in, its findings a statement that at the time of his injury Robert was an employee of Gant, was performing service growing out of and incidental to his employment, and his injury arose out of such employment.

Upon such findings of fact the commission entered an interlocutory order for the payment of workmen's compensation to applicant. Gant and his insurance carrier timely instituted an action in the Dane county circuit court for review pursuant to sec. 102.23, Stats., and by judgment entered April 24, 1952, that court affirmed the interlocutory order of the commission. From such judgment the plaintiff s have appealed to this court.

CURRIE, J.

The farms of Gant and of Oren Hendrickson were four miles apart. However, Gant owned a separate 71-acre tract which was only about a half mile distant from the Hendrickson farm, which tract Mr. Hendrickson and his sons, Robert and David, rented from Gant on shares for the 1948 season to be planted in corn and oats. Gant under the leasing arrangement was to supply half the fertilizer and half the seed, but no labor. Without the Hendricksons asking him to do so, Gant came over during May with his own son and two tractors and the two Gants worked two or three days helping the Hendricksons disk and harrow 56 acres of the the tract to be planted in corn. The reason Gant did this was because he could see that the Hendricksons were getting behind in their work as he had been in the neighborhood looking after some cows he had there.

Nothing was said between the parties about paying Gant for the work he and his son had performed. However, the testimony disclosed that it was the custom among farmers of the community to exchange work. The fact that the Hendricksons had not offered to pay Gant for his services would tend to support the inference that the parties were observing such custom of exchange of work which prevailed in the community, that when one farmer helped out another, the latter would repay in equivalent services at some future time. The Hendricksons talked it over among themselves and decided they would help out Gant at some future date when he needed help in repayment for what he and his son had done.

In the fall of 1948 the Hendricksons bought a corn picker. About November 15th, Robert was operating it on the tract ]eased from Gant when Gant drove over and talked to Robert. Robert's testimony of what then transpired is as follows:

"Well, I was picking corn down on his [Gant's] land that we rented from him, and he come driving in there one day pretty excited. He said it was getting awful late and he had a lot of corn standing in the field yet, so I told him not to worry and to quit picking it by hand; that when I finished over there, I would go over and pick it for him."

Some time later Gant came to the Hendrickson farm and asked Mr. Hendrickson for Robert. According to Mr. Gant: "I stopped in there and I told his father to tell Robert that he could come and pick that corn." Mr. Hendrickson informed Robert of Gant's call and shortly thereafter Robert went over to Gant's farm with the corn picker and a tractor to operate it. Gant was there at the time Robert arrived with the tractor and picker and showed Robert the field he wanted picked. Gant told Robert he wanted the middle of the field picked first and then the outside edges so as to make less driving on the ends, and to avoid slippery conditions.

Robert was asked at the hearing who had control over the work he was to do on the Gant farm and his answer was: "Well, I took it upon myself to go over there, and Gant told me what to do and where to do it."

Although the Hendricksons had bought the corn picker to do custom picking of corn for other farmers, as well as to pick the Hendricksons' own corn, nothing had been said between Gant and either Mr. Hendrickson or Robert about paying anything for Robert's services in picking Gant's corn with the picker. This establishes that the parties did not understand that any custom picking of Gant's corn was contemplated and tends to support the inference that Robert's services in picking corn for Gant was in repayment for Gant's services the previous May in helping the Hendricksons disk and harrow the cornland on the leased 71 acres.

In the words of Mr. Hendrickson: "Well, we was exchanging. He helped us in the spring of the year putting in them crops, making the bed ready for the corn, and we helped him out to pick his corn."

While operating the picker on the Gant farm it became clogged and while attempting to remove the material, which was responsible for impeding the proper operation of the mechanism, Robert's right hand and forearm got caught in the mechanism and were mangled.

Upon this review of the facts we now consider the applicable principles of law which are determinative of the issue raised by appellants that Robert at the time of his injury was not an employee of Gant as a matter of law in spite of the commission's finding that he was.

In view of the provision of sec. 102.23 (1), Stats., that the Industrial Commission's findings of fact are conclusive, such findings must be sustained if there is any credible evidence to support them. Jasperson v. Industrial Comm. (1939), 231 Wis. 142, 146, 285 N.W. 391. Appellants do not challenge this rule but contend that, inasmuch as the facts are not in dispute, the determination by the commission that the relationship of employer and employee existed between Gant and Robert at time of injury is a conclusion of law and not a finding of fact, and therefore is not conclusive on review.

Appellants are undoubtedly correct in their contention that the adjudication of whether an employer and employee relationship existed is the "ultimate conclusion as to liability" and therefore constitutes a conclusion of law even though it may have been labeled a finding of fact by the commission. Tesch v. Industrial Comm. (1930), 200 Wis. 616, 624, 229 N.W. 194. However, when facts are not in dispute but permit the drawing of different inferences therefrom, the drawing of one of such permissible inferences by the commission is an act of fact finding, and the inference so derived constitutes a finding of an ultimate fact and not a conclusion of law. Hipke v. Industrial Comm. (1952), 261 Wis. 226, 231, 52 N.W.2d 401; Ebner v. Industrial Comm. (1948), 252 Wis. 199, 201, 31 N.W.2d 172; Green Valley Co-op, Dairy Co. v. Industrial Comm. (1947), 250 Wis. 502, 505, 506, 27 N.W.2d 454.

We deem the determination by the commission, that Robert at the time of the accident was performing labor for Gant pursuant to an implied contract arising from the exchange-of-work custom which prevailed among farmers of the community, lies in the category of the drawing of an inference from undisputed facts. The other permissible inference which the commission could have drawn from the facts was that Robert, in picking corn for Gant, was acting as a mere volunteer and not pursuant to any implied contract, but the commission did not choose to do so. In this field of drawing legitimate inferences from undisputed facts, inasmuch as the commission was thereby engaged in fact finding, the ultimate fact so found is beyond our power to review.

We, therefore, are confronted with but one question of law and that is whether Robert at the time of his injury was an employee of Gant, in view of the commission's finding that the services he was then rendering were being performed pursuant to an implied contract whereby Gant was being repaid for work he had previously furnished to the Hendrickson partnership. The decision of this court in Northern Trust Co. v. Industrial Comm. (1939), 231 Wis. 133, 285 N.W. 339, would seem to compel that this question be answered in the affirmative.

In the Northern Trust Co. Case, one Gilbert was the manager of the Maytag farm and one Reynolds was the manager of the Young estate farm in the same neighborhood. Both farms carried workmen's compensation insurance. For many years there had been an exchange of labor between the two farms. Gilbert was accidentally injured on the Young estate farm in a corn shredder owned by the Maytag farm. At the time of the accident Gilbert and other employees of the Maytag farm were on the Young estate farm performing labor in exchange for labor the Young estate farm employees had performed on the Maytag farm. When work was performed on the Young estate farm, Reynolds, the manager, gave such directions as were necessary to Gilbert and the other Maytag farm employees, although at the time of the accident Gilbert was in direct charge of the mechanical operation of the shredder. Under the exchange arrangement no money was paid for the labor performed by the employees of the other farm although when machinery was supplied a cash rental for such machinery was paid. The commission found that, at the time of Gilbert's injury, he was in the employ of the Young estate and entered an order awarding workmen's compensation to Gilbert against the executor of the Young estate and his insurance carrier. This order was affirmed by the circuit court, and also by this court on appeal. In the opinion therein this court stated (p. 140):

"The fact that no fixed charge was made for the labor, and that no detailed account was kept of the interchange of labor, did not prevent Gilbert from being a special employee. "The duration of time of employment is not a controlling factor nor is an agreed rate of wages necessary to the establishment of the relationship. Johnson v. Wisconsin L. S. Co. 203 Wis. 304, 234 N.W. 506.' Neitzke v. Industrial Comm. 208 Wis. 301, 304, 242 N.W. 163."

While the exchange of labor in the Northern Trust Co. Case had been going on for some years, and in the instant case there was only the one instance of such exchange of labor, such distinction would not warrant a difference in result once the commission has found, as it did in the instant case, that the injured person at the time of accident was performing services pursuant to an implied contract based upon an exchange of labor.

In the Northern Trust Co. decision the court points out that the question of who had control of operations at the time the accident occurred is vital in determining whether an employer and employee relationship existed. In that case while Gilbert, the injured man, was in charge of the shredder, the commission found that Reynolds, the manager of the farm where the services were being performed, was in general control of the work. In the instant case, although Robert was operating the corn picker, Gant had exercised control over the details of the work by telling Robert what to do and where to do it.

It is, therefore, our considered opinion that Robert at the time of his injury was the employee of Gant.

By the Court. — Judgment affirmed.