Opinion
October 10, 1958 —
November 5, 1958.
APPEAL from a judgment of the circuit court for Dane county: HERMAN W. SACHTJEN, Reserve Circuit Judge, Presiding. Reversed.
For the appellant there was a brief and oral argument by Edward T. O'Neill of Fond du Lac.
For the respondent Industrial Commission there was a brief by the Attorney General and Mortimer Levitan, assistant attorney general, and oral argument by Mr. Levitan.
On September 13, 1956, John Matayo brought action to review an order of the Industrial Commission dismissing plaintiff's application for compensation. On March 1, 1958, a judgment was entered confirming the order and plaintiff has appealed.
John Ohlson, the defendant employer, was a logger at Rhinelander. In September of 1955 he made an agreement with Ward Drake for the purchase of logs located on a farm near Bristol in Kenosha county. Ohlson intended to saw the logs into lumber and pay the purchase price to Drake out of the proceeds.
Ohlson had employed his son, Norman, and Ronald Domaika and in addition hired plaintiff, at Rhinelander, to work on the job at Bristol. Plaintiff was to be paid by the hour although there is a dispute as to the rate agreed upon. Ohlson had his logging truck at Bristol and also had some arrangement with a sawyer to work there. On October 4, 1955, Ohlson drove his own car to Bristol, picking up Matayo at Rhinelander and Ward Drake at Monico. Ohlson's crew worked during the remainder of the week of October 4th. They roomed at Union Grove. On Monday, October 10th, a dispute arose between Ohlson and Drake and as a result of the dispute Ohlson left for Rhinelander on October 11th. Matayo, Norman Ohlson, Ronald, and Drake stayed and did further work at Bristol during the balance of that week. On Friday, October 14th, Norman drove the truck to Milwaukee and left it there for some rewiring work. Domaika, who had bought a car for himself, brought Matayo from Union Grove to Milwaukee, picked Norman up, and then proceeded to Rhinelander. On the way to Rhinelander an automobile accident occurred and Matayo was injured.
With reference to the conversation in which Matayo was hired, Matayo testified that Ohlson promised to bring Matayo home every two weeks; Ohlson testified that he agreed to take Matayo down to Bristol, a distance of about 280 miles; that he thought the job would take four to five weeks; that he could not recollect a conversation about seeing to it that Matayo got home every two weeks. He further testified:
" Q. What was your understanding about it? A. At one time they said they were going to stay down there till the job was finished. That I do remember, because in there somewhere they want to get home. We have to have some way to get home. I want to stay there myself.
" Q. Was it your understanding or your agreement that when the job was finished you would see the men got home? A. That I would have to see to, yes."
As to the conversation relating to the arrangement under which Matayo and the others stayed after John Ohlson left, Matayo testified that on Monday Ohlson told Matayo that Drake had stopped Ohlson from sawing and that Monday evening Ohlson told Matayo that Ohlson was going to quit and was going home on Tuesday. Matayo testified that he then agreed to go home with Ohlson. They had a conversation Tuesday morning and Matayo testified:
"The next morning when he come back out of the woods he says to me that he wants me to go back and work.
" Q. Ohlson said that? A. Yes. I said `John, how I'm going to get home?' `Well,' he says, `if Ronnie buys a car you ride home with Ronnie. If Ronnie don't buy a car, you and Norman take the truck and come home.' . . . I says, `How about the pay?' He says, `I pay you. You get your pay. And you stay here until Norman gets three loads of lumber out.' He says, `After that I don't care what you do.'"
Ohlson then took plaintiff back to the woods and plaintiff worked as if nothing had happened.
This portion of Matayo's testimony was described in the examiner's synopsis as follows:
"John Ohlson said he was going to quit, and I said, `I will go home with you.' The next day he said Drake wanted him to work. I said, `How will I get home?' He said, `If Ronnie gets a new car you go with him.' He took me out to the woods and I went back to work." (Italics ours.)
On cross-examination Matayo testified that when Ohlson left on October 11th he did say he was through with the job; that Ohlson didn't tell Matayo that if Matayo wanted to stay he was going to work for Drake; that Drake didn't take the job over; and also testified:
" Q. You worked for three days without knowing who your boss was? A. I know John Ohlson was my boss.
" Q. Didn't John say he was through with the job? A. Yes, he did.
" Q. How could he be on the job if he was through with it? A. He asked me to stay until Norman got those three loads of lumber out."
Matayo testified that he was never paid by Drake; that Drake didn't hire him and that Drake never bossed anybody; that Ohlson did not tell him Drake would be his boss; that he knew Ohlson quit the job but Ohlson told Matayo that Ohlson would pay Matayo for staying until Norman got the lumber out. The examiner's synopsis described this testimony as follows:
"October 11 he said he was through with the job. I didn't know Mr. Drake took over the job. I worked on October 11, 12, and 13. Ohlson left on the 11th. I knew he was through with the job. . . . I was never paid by Drake. John Ohlson told me Drake was taking over the job."
Drake testified:
" Q. After Ohlson left did you take this job over down there? A. All the men that he had down there — after he left and took his men all out, then I got me a bunch of men and went to work.
" Q. You took over when Ohlson left? That's the question. A. He left and took his men out on Friday when they went home. On Tuesday morning after that I took it over and went to work.
" Q. Just so we understand this correctly. You took the thing over after Ohlson's men had left; is that correct? A. That's right.
" Q. Had you ever hired any of Ohlson's men? A. Not a one."
The examiner's synopsis described this testimony as follows:
"After Ohlson left I took the job over. After Ohlson's men left I never hired the applicant."
Drake and Domaika corroborated Matayo's testimony that Ohlson had spoken about Domaika's bringing the boys home if he bought a car. John Ohlson testified that when he told Matayo that Ohlson was through with the job, Ohlson asked Matayo if he wanted to work for Drake and that Matayo had replied to the effect that he came down to Bristol to work. Norman Ohlson testified that when his father left, his father told Norman that Norman was supposed to keep hauling for Drake just as he had been for Ohlson and that Ohlson was renting the equipment to Drake; that Norman Ohlson considered that he was working for Drake.
The testimony at the hearings was transcribed September 18 and 26, 1956. The examiner's order was dated July 30, 1956, and the commission's order affirming the examiner's order was dated August 17, 1956.
None of the men received pay from either Ohlson or Drake for the time worked between October 11th and 14th.
Matayo was not paid for the time while he was being transported from Rhinelander to Bristol and did not expect to be paid for the time consumed on the way back.
The examiner found that Matayo performed service for Ohlson until October 11, 1955, when Ohlson advised Matayo that Ohlson was through with the job and that Drake would take over the work; that Matayo remained on the job and performed services for Drake; that Matayo's injury occurred when he was returning to Rhinelander in a fellow employee's automobile; that he was not being transported by Ohlson at the time of injury. The commission affirmed the examiner's findings.
The parties agree that "if the employer be under obligation to transport an employee to and from work, the employee is entitled to compensation if injured while being so transported." Githens v. Industrial Comm. (1936), 220 Wis. 658, 662, 265 N.W. 662. The Industrial Commission contends that it was entitled to draw the inference that there was no contract whereby Ohlson was obliged to transport Matayo back to Rhinelander. It is true that there was a conflict in the testimony as to Matayo's claim that Ohlson agreed to bring Matayo back to Rhinelander every two weeks. Ohlson did not remember that that was part of the conversation, but Ohlson testified that he understood he would have to see that Matayo had transportation back to Rhinelander when the job was finished. We conclude that the testimony establishes that there was a contract to provide return transportation when the job was completed.
The commission relies on Goldsworthy v. Industrial Comm. (1933), 212 Wis. 544, 250 N.W. 427. The situation there involved was essentially and materially different. The court there held that the evidence did not justify an inference that an employer provided transportation pursuant to a contractual obligation. There was no claim of an express, agreement on the subject between the employee and the employer. There was evidence that the employer had a truck which left the site of the construction job each Saturday and went to Beloit, a distance of 37 miles, and returned to the job each Sunday, and that a number of the employees who lived in Beloit customarily rode in this truck in order to be at their homes on Sunday. The essential differences in the situation are clear from the following statement by the court at page 553:
"The transportation so furnished was not in any manner a necessity for the prosecution of the employer's business. Not all of his employees came from Beloit, and there is no suggestion in the record that transportation was furnished to any except Beloit employees. Neither does it appear that it was in anywise necessary for him to recruit his crew from Beloit. Neither was it necessary in order to enable the employees to return to their home. It appears from the record that there was bus and other transportation from Beloit to points in convenient proximity to the camp. It also appears that although the employer's truck was available for transportation, some of the employees went back and forth in their own cars. For this they received no extra compensation. Their compensation started when they entered upon their work Monday morning and stopped when they ceased work on Saturday. In view of all these facts and circumstances, it appears an unwarranted inference that the transportation in this case was furnished by the employer in the discharge of a contractual obligation. It seems plain that it was a mere gratuitous service and but added another to the various modes by which the works or place of employment could be reached."
The commission further contends that the evidence presented a question of fact whether Matayo left Ohlson's employment and became Drake's employee on October 11th. We agree. Ohlson's position at the hearing was essentially that if Matayo wanted a ride back to Rhinelander, he should have gone with Ohlson on October 11th, but chose to remain and work for Drake. Matayo's position was that he was never employed by Drake but remained because Ohlson asked him to help Norman get out three loads of lumber and promised to pay him. Had the commission reviewed the complete transcript of testimony and come to the conclusion it did, its order would have to be sustained.
The commission did not, however, have a transcript of the testimony before it. It did have typewritten synopses prepared by the examiner and in the absence of a claim that the synopses were not "a fair and full statement of the essential testimony," a review based on the synopses rather than on a transcript is a sufficient compliance with sec. 102.18 (3), Stats. Berg v. Industrial Comm. (1940), 236 Wis. 172, 294 N.W. 506. In this case, however, it will be evident from the portions of the synopses and testimony set forth in the statement of facts that the synopses convey erroneous impressions of the testimony. Such erroneous impressions are:
(1) That Matayo testified that on October 11th Ohlson told Matayo that Drake wanted Matayo to continue to work;
(2) That Matayo conceded upon cross-examination that Ohlson told Matayo that Drake was taking over the job;
(3) That Drake testified that he took over the job after Ohlson left (October 11th) instead of after Ohlson's men left (October 14th).
The synopses did undoubtedly give the impression that there was little or no dispute about the proposition that on October 11th Ohlson ceased to be the employer and Drake was accepted by Matayo as his new employer; that faced with the choice of returning with Ohlson on October 11th or working for Drake, Matayo chose to work for Drake. It follows that Matayo has not had benefit of the review by the commission which the statute requires and the matter should go back to the commission for proper review and such further proceedings as may then follow.
In State v. Industrial Comm. (1956), 272 Wis. 409, 442, 76 N.W.2d 362, the state claimed that the commission had failed to review the evidence because the synopses omitted reference to certain portions of the testimony. This court concluded that the award should not be vacated unless the court were "convinced that the omission was so prejudicial that it is likely that the commission would have reached the opposite conclusion from that which it did if the synopses had set forth an adequate summary of the omitted testimony." In the case before us the difficulty with the synopses is not mere omission of testimony but an erroneous statement of material testimony, the error having the effect of making it appear that there was substantially no conflict when in fact there was one.
The commission also contends that the evidence supports the finding that Matayo was not being transported by Ohlson at the time of his injury. It is true that Matayo was riding with a fellow employee. If, however, Ohlson had a contractual duty to transport Matayo, and if he or his agent directed Matayo to ride in the fellow employee's car in lieu of Ohlson's truck, the injury would be compensable. Rock County v. Industrial Comm. (1924), 185 Wis. 134, 200 N.W. 657.
It is true that there is a conflict in the testimony as to a direction by Ohlson that Matayo ride with Domaika. But because of the probability that the commission's interpretation of the testimony on this issue was affected by its determination as to whether there had been a change of employers, we conclude that plaintiff did not have a proper review even though there does not appear to be any significant inaccuracy in the synopses of testimony on the issue of the direction that Matayo ride with Domaika.
By the Court. — Judgment reversed, cause remanded with directions to remand the matter to the Industrial Commission for review of the examiner's findings and order.
MARTIN, C.J., and BROWN, J., took no part.