Madix v. Hochgreve Brewing Co.

The first question presented by the appeal is the correctness of the trial court’s ruling that Schmidt was an independent contractor and not a servant or agent of the defendant. The evidence upon which the ruling was based is not in conflict, so it resolves itself into a determination of whether or not the correct legal conclusion was drawn from the undisputed fact's. The definitions of the term “independent contractor” found in the decisions are uniformly fin harmony and may be summarized as “one who, exercising an independ*451ent employment, contracts to do a piece of work according to Ms own methods and without being subject to control of his employer, except as to the result' of his work.” Powell v. Virginia C. Co. 88 Tenn. 692, 13 S. W. 691; Humpton v. Unterkircher, 97 Iowa, 509, 66 N. W. 776; 1 Thomp. Comm. on Reg. § 622; 2 Cooley, Torts (3d ed.) 1098. In Carlson v. Stocking, 91 Wis. 432, 65 U. W. 58, our own court defined an independent contractor as “one who undertakes to do specific jobs of work, as an independent business, without submitting himself to control as to the petty details.” A number of tests have been suggested as more or less decisive of determining whether a given relation is that of a servant or agent, or of an independent contractor, but none has been found that can be regarded as wholly satisfactory or conclusive as applied t'o all cases. The most significant indicium, of an independent contractor, however, is his right to control the details of the work. 1 Thomp. Comm, on Reg. § 622; 2 Cooley, Torts (3d ed.) 1098. If such right remains in the employer, whether exercised or not, the relation will be held, in the absence of other controlling circumstances, to be that of master and servant or principal and agent, and not of employer and independent contractor. 1 Thomp. Comm. on Reg. § 629; Singer Mfg. Co. v. Rahn, 132 U. S. 518, 10 Sup. Ct. 175; Atlantic T. Co. v. Coneys, 82 Fed. 177, 28 C. C. A. 388; Pickens v. Diecker, 21 Ohio St. 212; Hardaker v. Idle D. Council, [1896] 1 Q. B. 335; Goldman v. Mason, 2 N. Y. Supp. 337; Linnehan v. Rollins, 137 Mass. 123; Norwalk G. Co. v. Norwalk, 63 Conn. 495, 28 Atl. 32. Thus in Atlantic T. Co. v. Coneys, supra, the court said: “The tendency of modern decisions is . . . not to regard as an essential or absolute test so much what the owner actually did when the work was being done as what he had a right to do.” And in Hardaker v. Idle D. Council, supra, the court, through Rigby, L. J., said: “It is this unlimited right of control, whether actually exercised or not, which, in my opinion, is the condition for inferring the *452responsibility of a master.” Page 353. And in Pickens v. Diecker, supra, it was pointed ont that'it was not necessary that the employer should in fact exercise control. It was sufficient if he had authority to do so; and the fact that the employer chose to leave the details to the servant because of the confidence in his ability, and knowledge of the work, to do what was proper, was immaterial. In Linnehan v. Rollins, supra, instructions to the effect that “it is the possession of the right of interference, the right of control, that puts upon a party the duty of seeing that the person who stands in that relation does his duty properly,” and “the absolute test is not the exercise of power of control, but the right to exercise power of control,” were approved upon appeal. Other significant characteristics of an independent contractor are that he is usually engaged in carrying on an independent employment or business, and customarily contracts to do a given piece of work for a specified sum of money and is responsible for the result thereof, while a servant usually works by the hour, day, week, or month, and is not responsible for the result of the work beyond performing his own labor in a workmanlike manner.

Applying these principles and tests to the case before us, we find that Schmidt was working for stated wages; that the ultimate right of direction and control was reserved in the defendant; that' Schmidt was not responsible for any specified result, and might have been discharged at any time without breach of contract; that his discharge would operate to discharge the men hired by him; that the defendant might stop the work at any time or materially change the plan or extent thereof without in any way rendering itself liable to Schmidt for any damages. The only two significant indicia that Schmidt sustained the relation of an independent contractor were that he undoubtedly had, up to the time of plaintiff’s injury, actually controlled the details of the work and was carrying on the business of a mason. But when all *453the circumstances pf tbe manner in which the work was done are considered, and it is remembered that the defendant claimed the right to determine how the work should be done in case of a disagreement, though' such right had not been exercised, it must be held, within the above authorities and the rule announced in the case, of Rankel v. Buckstaff-Edwards Co. 138 Wis. 442, 120 N. W. 269, that Schmidt was a servant and not an independent contractor. The latter case is almost identical with the present one. By a reference to the printed case therein, page 42, it will be seen that Heid-linger was a carpenter and builder and held himself out as a contractor in that line of Work, just as Schmidt did in mason work in the case at bar. See, also, Hiroux v. Baum, 137 Wis. 197, 118 N. W. 533, and Murphy v. Herold Co. 137 Wis. 609, 119 N. W. 294. Both on principle and authority, therefore, it must be held that the trial court erred when it directed a nonsuit on the ground that Schmidt was an independent contractor. Upon the evidence as it stood at the close of plaintiff’s case the trial court should have held that the relation of master and servant existed between defendant and Schmidt. Eor exhaustive notes on the subject of what constitutes an independent contractor, see 65 L. R. A. 445, and 17 L. R. A. n. s. 371.

It is urged that the court should hold as a matter of law that plaintiff was guilty of contributory negligence or assumed the risk, and hence the nonsuit was properly granted; that the ladder was a simple appliance whose condition and position were easily ascertainable, and that plaintiff should have stepped lower than the third rung in starting to descend. The evidence showed plaintiff was the last of several men to go up and the first to come down. The case, therefore, falls within sec. 1636 — 81, Stats. 1911, but that does not bar the defense of assumption of risk or contributory negligence. Koepp v. Nat. E. & S. Co. 151 Wis. 302, 139 N. W. 179; Van Dinter v. Worden-Allen Co. 153 Wis. 533, 142 N. W. *454122; Ives v. South Buffalo R. Co. 201 N. Y. 271, 94 N. E. 431. Tbe court cannot say, however, under the evidence, either that he assumed the risk or that he was guilty of contributory negligence. Those are jury questions, and as there must be a new trial we forbear to comment upon the degree of persuasiveness of the proof touching them.

By the Court. — Judgment reversed, and cause remanded for a new trial.