Summary
In Revels v. Industrial Comm., 36 Wis.2d 395, 401, 153 N.W.2d 637 (1967), the Wisconsin Supreme Court held that the commission was entitled to rely on written statements of a witness close in time to the alleged accident, which were inconsistent with that witness' later testimony, "on the premise that the more recent the event, the fresher and more accurate the memory."
Summary of this case from Bumpas v. Department of Industry, Labor & Human RelationsOpinion
October 2, 1967. —
October 31, 1967.
APPEAL from a judgment of the circuit court for Dane county: EDWIN M. WILKIE, Circuit Judge. Reversed.
For the appellant Industrial Commission the cause was argued by Roy G. Mita, assistant attorney general, with whom on the briefs were Bronson C. La Follette, attorney general, and Gordon Samuelsen, assistant attorney general.
For the appellants Floyd Revels, H D Lumber Company, Inc., and Employers Mutual Liability Insurance Company there was a brief by Klueter, Larson MacKenzie of Wausau, and oral argument by H. R. Klueter.
For the respondent there was a brief by Frederick F. Hillyer of Madison and Harry D. Clarke of Stoughton, and oral argument by Mr. Hillyer.
This is an appeal by the Industrial Commission from a judgment of the circuit court reversing an order of the Industrial Commission denying compensation and remanding the application for further proceedings.
After a hearing on the respondent's application for workmen's compensation benefits for the death of her husband, the examiner found that her husband, Argyle Revels, was neither an employee of the H D Lumber Company, Inc., nor of Floyd Revels and denied compensation on April 6, 1964. The Industrial Commission affirmed the findings and order on May 6, 1964. This order was reviewed by the circuit court which reversed the Industrial Commission and is now before this court on appeal.
Floyd Revels was engaged in the trucking business in Ontario, Wisconsin. His main job was milk hauling, but he also hauled logs and cattle with a platform truck that he owned. The H D Lumber Company, Inc., operates a sawmill at La Farge, where it converts logs acquired from farms in the vicinity into finished lumber. In a typical arrangement it acquired timber from a nearby farmer, Clifford Turner, and contracted with Floyd Revels to truck the logs from the Turner farm to the sawmill premises at a price of $10 per thousand feet. Floyd Revels was obligated to load the logs for hauling, haul them to the sawmill premises and then unload them. His control of the details of the work of hauling is not questioned on appeal.
Floyd Revels testified that he had the option to be paid $11 per thousand feet and to carry his own insurance or to be paid $10 per thousand feet and to have the lumber company take out the insurance and that he chose the latter alternative. Russell Davidson, the official of the lumber company with whom Floyd Revels allegedly made the agreement concerning the insurance, testified he had no recollection that insurance was ever discussed and that no insurance was ever carried on Floyd Revels.
Argyle Revels was killed on June 17, 1963, while helping his brother Floyd unload logs hauled from the Turner farm at the H D Lumber Company yard when a log fell off the load and hit him in the head.
The evidence bearing on the question whether Argyle Revels was an employee of Floyd Revels is found exclusively in the testimony of Floyd Revels. On direct examination he testified that June 17, 1963, was the first day on which his deceased brother "worked" for him and that the work Argyle did consisted of helping Floyd load and unload the logs. He further testified that the two of them had conversations concerning the rate that Argyle was to be paid and that except for the accident he had intended to pay Argyle $1.25 an hour.
On cross-examination, however, two written statements taken by a representative of Employers Mutual Liability Insurance Company and signed by Floyd Revels were introduced into evidence without objection. The first one was taken on June 18, 1963. It stated in part that on the morning of June 17, 1963, Argyle Revels "just rode along for enjoyment" on the milk route and that in connection with the log hauling he helped hook tongs while Floyd operated the boom. The statement recites that wages had neither been discussed nor paid since Argyle "wanted to be out get [sic] some exercise as he was sitting around in the trailer house and doing nothing." Later the following language occurs:
". . . I had figured on keeping my brother for the length of time that I had work to do. I had not mentioned any wages for this work as he came over a couple of days before said he was tired of sitting around wanted to do something, in other words he was a passenger when he was along on the milk route, and the only thing he did was hook the tongs on the logs take the chains off the log in the yard. . . ."
The second statement was taken on August 12, 1963. According to this statement, Argyle came over to Floyd Revels' house on the morning of June 17, 1963, and asked Floyd to let him ride along and help because he could not stand sitting around the house any longer. Floyd advised against it because he feared it might affect Argyle's army disability pay, and he thought Argyle physically unfit for the work.
With respect to the conduct of the parties that day, the statement reads as follows:
". . . He said he thought he could help out all right so I was going to take him to H D lumber to see what the deal would be on insurance. When I got to the mill, neither of the bosses was there so I never did find out. We had no conversation about wages at all. Normally I do all the work of loading, hooking, and placing the load myself. My wife rides with me as a rule, but she doesn't do any work as far as my hauling is concerned — she just comes along in case. I might get hurt — Actually that day Argyle, my brother, did a little bit of everything, but not much of anything. Actually I did almost all of the work — He was doing more watching than anything — He did roll a few logs around with a cant hook to make it easier for me to hook the tongs on. Actually we hadn't discussed any wages or that I would hire him. He was more or less seeing what was involved. Nothing was said about wages. I couldn't really talk to him about hiring him to help me because I didn't know where I stood on insurance and I hadn't had a chance to discuss that with Russ Davidson of H and D. I wanted to be sure where I stood before I hired anyone. Up until the time my brother was killed, I didn't consider him an employee and I hadn't agreed to hire him. I paid no wages to his widow. If my brother, Argyle, hadn't come over to the house the morning of June 17, 1963, I would have hauled those logs myself. It would have been hard to haul that load myself but I could have done it. I had in the back of my mind that I would have paid Argyle $1.25 an hour if I had hired him. If H D wouldn't have let me hire my brother, I would have paid him that day anyway — I didn't pay his widow though — I have never had a helper on the log truck when I've been hauling logs. . . ."
On cross-examination Floyd Revels acknowledged the making of the two statements, but suggested he and his brother talked about wages but never agreed on a wage rate, thereby modifying language in his written statement of June 18, 1963. He also admitted that he wanted to talk to an official of the lumber company about insurance coverage before he hired Argyle and reaffirmed his statement of August 12, 1963, that he would have paid his brother $1.25 an hour had he hired him.
The sole issue on this appeal is whether there is any credible evidence to support the finding that Argyle Revels was not an employee on June 17, 1963, so as to be covered by the Workmen's Compensation Act.
The statutory definition of "employee" for the purpose of ch. 102, Stats., includes "Every person in the service of another under any contract of hire, express or implied, . . ."
The trial court held that the applicant was aided by the presumption that if at the time of the accident deceased was rendering service for the alleged employer, the relationship of employer and employee existed. Scholz v. Industrial Comm. (1954), 267 Wis. 31, 64 N.W.2d 204, 65 N.W.2d 1.
The court further held that the applicant's burden of proof was fulfilled when she established that her husband was killed while in the service of his brother because the defendants did not come forward with evidence of sufficient probative force to support a reasonable inference to the contrary. It therefore determined the question of employment as a matter of law.
The commission's conclusion that Argyle Revels was not an employee of either Floyd Revels or the H D Lumber Company, Inc., on June 17, 1963, is a question of law while the evidence establishing that relationship is a question of fact to be determined by the commission. Duvick v. Industrial Comm. (1963), 22 Wis.2d 155, 163, 125 N.W.2d 356. The only testimony bearing on the question of employment came from the witness Floyd Revels and it is inconsistent in several respects. However, there is credible evidence to support the commission's findings or reasonable inferences exist which sustain the findings. In such a case the findings of the commission are conclusive. Kraynick v. Industrial Comm. (1967), 34 Wis.2d 107, 111, 148 N.W.2d 668.
It is undisputed that Argyle Revels was interested in getting out of the house on the morning of June 17, 1963 and that he just rode along for enjoyment in the morning and performed minimal tasks in the afternoon. Floyd testified that he would have hauled the logs himself had Argyle not asked to go along with him. Although the testimony on wages is conflicting, the commission was entitled to believe there was no discussion on wages. His widow was never paid. Floyd also testified that he could not consider hiring Argyle without first learning whether he would have to carry insurance. There was also testimony that Floyd advised against Argyle working because he feared it might jeopardize Argyle's total disability pension from the Army. From these facts the commission was entitled to believe that Argyle Revels was not employed by his brother on June 17, 1963. Indeed, the facts at best seem to suggest the possibility of future employment.
The commission was entitled to rely on Floyd Revels' written statements of June 18 and August 12, 1963, which were inconsistent with his later testimony on the premise that the more recent the event, the fresher and more accurate the memory.
We believe that any presumption that Argyle was an employee of Floyd disappeared when evidence to the contrary was introduced on cross-examination.
The presumption that one injured in the service of another is an employee is a rebuttable presumption and ceases to have force and effect when evidence to the contrary is adduced. Conrad v. Industrial Comm. (1949), 254 Wis. 574, 578, 37 N.W.2d 60, 62; Enderby v. Industrial Comm. (1960), 12 Wis.2d 91, 94, 106 N.W.2d 315.
We conclude that although inferences might reasonably be drawn to support the trial court's conclusion that an employer-employee relationship existed, facts are established from which reasonable inferences might be drawn to support the Industrial Commission's conclusion that Argyle Revels was not an employee of Floyd Revels.
By the Court. — Judgment reversed and cause remanded with directions to affirm the order of the Industrial Commission.
WILKIE, J., took no part.