Ocean Acc. Etc. Corp. v. Indus. Acc. Com.

As a brief outline, the facts appear to be that one Florcken was employed by a society known as the Turn Verein Germania to make collections of monthly dues from its members, for which service Florcken was to be paid a commission of ten per cent on the total amount received by the society from such source, whether or not personally collected by him. While acting in the course of and arising out of his employment Florcken sustained injuries which subsequently resulted in his death. On application by his widow to the respondent Commission to adjust compensation alleged *Page 291 to be due to her under the provisions of the Workmen's Compensation, Insurance and Safety Act (Stats. 1917, p. 831), an award was made, and it is by way of writ of review that petitioner herein seeks to have such award annulled.

[1] It is the contention of petitioner herein that the relationship which existed between Florcken and the society was such that in a legal sense Florcken was not an employee of the society, but that he was an independent contractor, and as such neither he nor his dependent was entitled to any benefits arising from the provisions of the so-called Workmen's Compensation Act.

By the terms of section 8a of the act in question an employee includes every person in the service of an employer under any appointment or contract of hire, and the presumption (sec. 8b) is that "any person rendering service for another other than as an independent contractor" is an employee.

In order to determine the contractual relationship which existed between the parties, in addition to adjudicated cases in which the relationship of master and servant and that of owner and independent contractor have been discussed and decided, it becomes necessary to consider further details regarding the situation of the parties herein one toward the other. At the hearing before the respondent Commission it was shown in evidence that following the resignation of a former collector of dues for the society, on resolution of the board of directors thereof Florcken had been elected to the position, to hold same during the pleasure of the board; that in connection with his work he was bonded as a collector and was furnished by the society with stationery, books, receipts, and, with the exception of postage, with all other supplies necessary in the proper discharge of his duties; that during the two years of his engagement with the society, although he had no other employment, no restrictions, as such, were placed upon him as to the time when, or the manner in which, his work should be performed, and that as a matter of fact he kept his books at his home, worked such hours in the daytime as he chose, and generally operated from his home. However, although not particularly specified as a part of his duty, he was expected to attend meetings of the members of the society and thereat *Page 292 make such collections as were possible. His work was performed in the name of the society and all collections were retained by him until his monthly accounting was made, at which time he delivered to the society the full amount collected by him and thereafter ten per cent of such sum was returned to him in compensation for his services. The account between the society and Florcken was kept on the books of the society under the heading "Commission and Dues." Another account kept by the society was entitled "Labor and Compensation," under which head appeared the moneys paid to salaried officers and general help. The evidence showed that the trustees of the society supervised Florcken's work, and that at any time they might dismiss him by action of the board of trustees in the event that his work was unsatisfactory.