
    Farmer, Appellant, vs. St. Croix Power Company, imp., Respondent.
    
      February 6
    
    February 24, 1903.
    
    (1, 2) Trial: Findings: Duty of court: Reversible error. (3-5) Liens: Construction of statutes: Subcontractor or employee?
    
    1. Upon trial of a question of fact by tbe court the parties are entitled, under sec. 2863, Stats. 1898, to a finding of fact upon each material issue raised by the pleadings, and to findings in reasonable detail covering all matters as to which there is a reasonable controversy respecting whether they have a material bearing upon the rights of the parties or not; and are entitled, also, to the decision of the trial judge specifically upon the minor questions of law applicable to the facts found upon which the ultimate conclusion of law must rest.
    2. Failure to make findings and conclusions as above indicated is error, but will not work a reversal unless it appears probable that the substantial rights of the unsuccessful party may thereby have been injuriously affected.
    3. Secs. 3314, 3315, Stats. 1898, giving a lien to every “principal contractor,” “subcontractor of a principal contractor,” or “employee of either,” who performs work, etc., for, in, or about the erection of certain structures, provides for three distinct classes of persons, and the terms used should be construed accordingly. •
    4. Plaintiff agreed with a subcontractor to do all the hauling necessary for the execution of the latter’s contract, the amount of such hauling being very large and necessitating the employment by plaintiff of a large number of teams and men. The agreement did not bind plaintiff to any personal service. Held, that he was not an employee of the subcontractor, but was a subcontractor in the second degree, not entitled to a lien under secs. 3314, 3315, Stats. 1898.
    5. The fact that plaintiff’s servants acted more or less under the direction of the subcontractor, who gave them orders as to where materials should be unloaded, etc., did not make the plaintiff an employee of the subcontractor.
    Appeal from a judgment of tbe circuit court for St. Croix county: E. W. Helms, Circuit Judge.
    
      Affimned.
    
    Action to enforce a lien under sec. 3315, Stats. 1898. Tbe complaint contained the necessary formal allegations to satisfy the statute. Those respecting competency of the plaintiff to enjoy the benefit of the lien statute were to the effect that the proprietor was the defendant St. Groix Power Company; that it contracted the entire work, of which that done by plaintiff formed a part, to Robert N. King; that King sublet the work to the Engineering Contract Company; that plaintiff was employed by such company to and did “perform work, labor and services in and about the construction and erection of” the particular structures and -improvements included in the principal contract at the agreed price of $9,419.05, and that all thereof except $5,279.50 was unpaid. &
    The exact nature of the contract of employment, as regards whether plaintiff was an employee of the subcontractor, or whether his services were rendered in and about the erection of the structures and improvements to be produced under the principal contract as alleged, as shown by the evidence, is indicated by the findings of the court, which are substantially as follows: Plaintiff agreed with one Louis L. Brown, claiming to act for the Engineering Contract Company in respect to all of the structures to be produced under the principal contract, except the flume, “to haul cement from the Somerset Station on the Wisconsin Central Railroad, to a point near the Apple River Falls . . . for the sum of thirty-five cents for each four hundred pounds,” the cement to be delivered as fast as needed and the amount to be required to be hauled each,day not to exceed 200 barrels of 400 pounds each. The agreement was in writing and contained this provision :
    “It is further agreed that the said party of the second part shall have the sole hauling of the entire amount of cement needed, which he shall deliver as above specified; and should he fail to deliver the same as above specified, the party of the first part is hereby authorized by the -said party of the second part to haul the said cement and to charge the cost of said hauling to the account of the said party of the second part.”
    
      At or about tbe time said contract was made, plaintiff agreed verbally with persons claiming to act for tbe Engineering Contract Company to do all tbe bauling necessary for tbe execution of tbe principal contract respecting tbe flume, and not embraced in tbe written contract, for $6 per day per man and four-borse team. Tbe undisputed evidence was to tbe effect tbat tbe amount of material to be bauled under tbe contract and wbicb was actually bauled was very large; tbat it was bauled from points several miles from tbe location of tbe improvement; tbat tbe contract did not contemplate tbat tbe bauling should be done, and it in fact was not done, by tbe personal labor of plaintiff; tbat in tbe execution of tbe contract plaintiff used twenty to thirty horses and a number of employees; in short, tbat tbe work was let to plaintiff as a distinct part of tbat necessary to execute tbe principal contract — let to him as a whole — as a distinct job, so called — to be done, not by himself personally, but under him as tbe responsible party by such servants, teams and appliances as be might choose to employ.
    Tbe findings contain a copy of tbe written contract; a copy of tbe notice given to comply with tbe requirement of tbe statute as to a subcontractor or employee of a subcontractor, giving notice to tbe proprietor, of bis claim for a lien; a copy of tbe lien petition; a copy of tbe affidavit for tbe order of publication upon wbicb services of tbe summonses as to tbe principal contractor and subcontractor were based; a copy of such parts, of tbe order of publication as were challenged by tbe defendant St. Croix Power Company as insufficient; a finding to tbe effect tbat a large number of tbe items included in plaintiff’s claim were not lienable and manifestly so under any reasonable theory; a finding tbat tbe sum of $3,868.65 was due plaintiff for work under'bis contracts; a finding to tbe effect tbat tbe evidence left it un-ascertainable as to bow much of tbe work performed by plaintiff was in delivering material upon tbe premises in question for use in tbe production of tbe improvements covered by tbe principal contract, or wbat part of tbe material bauled by plaintiff was so used, or when tbe last lienable work was done, if any of tbe same was lienable, and that a material portion thereof at least was not lienable under any circumstances. There was a general conclusion that tbe Si. Oroix Power Company was entitled to judgment against plaintiff dismissing said action as to it, with costs. Tbe court found that plaintiff was entitled to judgment against tbe Engineering Contract Company for tbe indebtedness established-as aforesaid, with interest and costs, and that judgment should go against plaintiff as to tbe other defendants, with costs. Judgment was entered accordingly.
    
      A. J. Kinney, for tbe appellant.
    Eor tbe respondent there were briefs by Baker & Raven, attorneys, and F. W. M. Cutcheon, of counsel, and oral argument by R. C. Baker and Spencer Raven.
    
   Massttatj,, J.

In tbe disposition of this case these important questions,,among others, were presented for adjudication: (1) Is hauling material for use in making av structure or creating an improvement such as is mentioned in sec. 3314, Stats. 1898, tbe performance of labor “for, in or about the erection or construction” of such structure or improvement? (2) Is a person who makes a contract to perform all or a specific part of work required in tbe execution of a contract, tbe same to be performed, not by him personally, necessarily, be being at liberty to perform 'the same by such servants and appliances as he may see fit to employ, an employee? (3) Was tbe service of a notice containing a statement of the plaintiff’s claim, which included a large number of items representing manifestly nonlienable matters, the lienable and nonlienable matters being so intermixed and stated as to render it impracticable for the person receiving tbe notice to determine either whether all tbe matters are lienable or if not to separate those wbicb are lienable from those which are not, a compliance with the statute? (4) Was the notice served in this case a compliance with the statute irrespective of the subject last mentioned? (5) Was the lien petition sufficient under the statute? (6) Did the court obtain jurisdiction of the principal contractor? Such matters involved important facts in issue and disputed questions of law vital to the ultimate question to be solved, — that of whether, as a matter of law, respondent was entitled to a lien. Iiow the court decided any of them, with one exception, we are entirely unable to determine. The finding to the effect that if respondent had a lien it was only for a part of his claim, and that it was impracticable from the evidence to separate the lienable from the nonlienable matters, of course, was sufficient to defeat the lien. So was the finding that plaintiff failed to show when the last lienable work was done, maintaining the allegation of the complaint as to the lien being filed in time, fatal to his case. That was a result easy to reach if the evidence warranted the findings.

Whether the findings are sustained by the evidence admits of serious doubt. If they are, whether they would not have been different had the court been less strict in ruling on objections to evidence and applied those liberal rules that are ordinarily and properly applied, especially in the trial of equity cases, also admits of grave doubt. The purpose of a judicial trial of causes is to administer justice. That should never be lost sight of. Mere technical knowledge is of secondary importance and an effort to effectively display it may prove fatal. If in the end, so far as practicable by human agencies, and with the due observance of established rules, justice does not prevail, the court will have failed to perform its function. Parties should be permitted all reasonable latitude to present their case, — a latitude limited only by those boundaries which cannot be crossed without the commission of prejudicial error, so far as careful attention to tbe trial can determine tbe same, in tbe presentation of tbeir cause of action or defense. In a trial in equity tbey are entitled to a decision by tbe trial court upon eacb material issue raised by tbe pleadings; and to sucb decision also in detail, to at least a reasonable degree, covering tbe matters not only deemed by the court material to sustain the final judgment, but all those matters as to which there is a reasonable controversy respecting whether tbey have a material bearing upon the rights of the parties or not. They are also entitled to the decision of the trial judge specifically upon the minor questions of law applicable to the facts found upon which the ultimate conclusion of law must rest. They are entitled to all that from the one who has the opportunity of hearing the evidence and of seeing the witnesses before he surrenders his jurisdiction over the case. That privilege is given or declared by statute in mandatory language in these words: “The judge shall state in his decision separately: (1) The facts found by him; and (2) his conclusions of law thereon.” Sec. 2863, Stats. 1898. That means, manifestly, something more than a general finding of facts and a general oonclusion of law. As to the facts it means at least a finding in detail of matters essential to be stated in the pleadings to make out the cause of action or defense found by the trial court to exist. It means what it says, and nothing short of the specific findings and conclusions commanded satisfies the full measure of duty according to the standard set by legislative will. That, so far as courts can bow to it without sacrifice of constitutional function, should not be violated.

Failure to make findings and conclusions as above indicated does not constitute reversible error. That has been too often said to be now disturbed. Willer v. Bergenthal, 50 Wis. 474, 7 N. W. 352; Luthe v. Farmers’ Mut. F. Ins. Co. 55 Wis. 543, 13 N. W. 490; Wilkinson v. Wilkinson, 59 Wis. 557, 18 N. W. 527; Dietz v. Neenah, 91 Wis. 422, 64 N. W. 299, 65 N. W. 500; Yahr v. Joint School Dist. 99 Wis. 281, 74 N. W. 779. But judgments Rave been so commonly sustained, regardless of defective findings and conclusions, it is feared that in some jurisdictions, and possibly not without reason, the idea prevails that what the legislature saw fit to make a significant part of the Code is regarded here to be of trifling importance. We have striking proof of that in the case before us, in that there,is an entire absence of any special decision upon most of the contested questions of fact and of law. The issue as to whether the notice of the plaintiff’s claim to the proprietor was sufficient to satisfy the statute is treated by embodying the notice in the findings without any decision as to whether respondent was right or wrong in his position that the claim was fatally defective. The same is true as to the lien petition, the affidavit for the order of publication and the order of publication. The issue as to whether the work done by plaintiff was of a lienable character under any circumstances, and that as to whether he was a subcontractor or a mere employee, were treated by embodying in the findings the undisputed evidence as to the-terms of the contract, without any specific decision, nor any at all so far as we can discover definitely, as to the proper conclusion of fact or of law to be drawn from such evidence. To place upon file a document as a basis for a final decree embodying a mass of evidentiary matters, with few or no findings upon the issues between the parties, but with a general conclusion as to who is entitled to recover, we can hardly dignify as an attempt to comply with the statute. It should be understood that failure to comply with the statute is error; that it is held not reversible error merely because, in harmony with sec. 2829, Stats. 1898, this court feels bound to hold that, regardless of how numerous and inexcusable the errors committed upon the trial of a case may be, the judgment must be affirmed on appeal unless it appears probable that the substantial rights of the unsuccessful party may thereby have been injuriously affected. Mauch v. Hartford, 112 Wis. 40, 87 N. W. 816. What this court is bound to overlook in reaching a final result should not be regarded by trial courts as not error at all, or error of such trifling consequence as to be looked upon as of an extremely technical nature, — mere fault in matter of form. Otherwise the result will be that the statute, iiftended to enable litigants to see the precise grounds upon which their case turned and the unsuccessful party to present his complaints for review here with as little expense and labor as practicable, and this court to fulfill its function in the matter with the benefit of a definite decision by the trial judge, made from his place of advantage, upon' every point involved, will fail to effect those valuable results. This case is such a striking example of a bad practice, that it is deemed best not to let the occasion pass without making a reasonably vigorous attempt to give such significance to the statutory duty to which we have referred as will result in that part of the Code creating it being given its proper place in the administration of justice.

As we have indicated, it is not entirely clear that the evidence supports the two infirmities as regards facts in issue in the plaintiff’s casé, found by the court. But it is not necessary to decide the matter, nor does it seem advisable to do so, nor any of the questions presented in the case except that of whether appellant was an employee of the Engineering Contract Company. The view we have come to on that is so obviously fatal to appellant’s claim for a lien that we will let our decision rest solely on our conclusion in respect to it.

Secs. 3314 and 3315, Stats. 1898, give a lien to a principal contractor, subcontractor, or employee of either, “who performs any work or. labor,” etc., “for, in or about the erection or construction” of such structures and improvements as those involved in this case. At the outset we must not overlook the significance of the terms “principal contractor,” “subcontractor,” or “employee of either,” used in such a way as to unmistakably indicate' a legislative purpose to favor three distinct classes of persons by the statutory privilege. That precludes us from speculating as to whether a “subcontractor/’ in the broadest sense of the term, can be classed as an employee under any circumstances. So we reach the question at once of whether appellant was an employee or a subcontractor. Within the meaning of the statute he could not have been both. If he was the latter he was a subcontractor of a subcontractor, and not within the statute.

As indicated in the statement of facts, appellant’s contract did not bind him to personal service in any proper sense. It bound him to produce upon the ground of the power company, so far as the service of transporting from points several miles therefrom was concerned, a large amount of material to be used in making the improvements under the principal contract. He was at liberty to do that with his own teams or with hired teams, and with the necessary labor to attend the same. Many teams and servants were required to produce the result agreed upon.

Much significance appears to be attached by appellant’s counsel to the fact that the plaintiff’s servants acted more or less under the direction of the managing agent for the subcontractor, the Engineering Contract Company; that such superintendent gave orders to the man in general charge of appellant’s force of servants, and directed the teamsters where to unload material. We see nothing in that out of harmony with appellant’s being himself a contractor. Though his teamsters directly or indirectly followed the suggestions of the manager for the Engineering Contract Company, they were of course his employees,- — men used by and responsible to him in working out the result which he was under contract to produce. Obviously, the mere fact that employees of a person, having a distinct portion of contract work to do, take direction's to some extent as the work proceeds from the principal contractor does not change the status of their employer from that of a subcontractor to that of an employee of the principal contractor. The circumstance in regard to who directed the teamsters where to unload material from their wagons has nothing to do with the question of whether their employer was an employee or a subcontractor. That must be determined by the nature of his contract itself.

Now there can be no question as to what constitutes a principal contractor. He is a person standing in direct relation to the proprietor and responsible to him, permitted, by the nature of his contract, ordinarily, to work out the plan thereof by subletting to others if he sees fit. A subcontractor, then, must be a person whose relation to the principal contractor is substantially the same as to a part of the work as the latter’s relation is to the proprietor. He takes some distinct part of the work in such a way that he does not contemplate doing merely personal service. Those whom' he employs are his servants. With their aid or without it, and by such means as he deems best for his interests within the lines of the contract, he is obligated to produce the agreed result. The same rule holds good, of course, between him and his subcontractor. The distinguishing feature between the relation of employee and employer and that of contractor and subcontractor is the same whether the subcontractor is removed two or any number of degrees from the person who in the-end is to become possessed of the results of the energy employed. While a contractor in any degree is obligatéd to deliver certain results, so to speak, the employee is obligated to deliver his personal service. That seems in harmony with the common meaning of the words. Unless there is something in the manner of their use in the statute or in the application thereof to the subject-matter with which it deals to indicate to the contrary, that meaning must be deemed to be the one intended by the legislature. Neither of those reasons exists in this case for departing from the common specific meaning of the words. On the contrary, they are used in the statute in such a way as to emphasize such meaning. We are precluded, by a well-known rule from looking at them in tbeir broad, general sense so far as that would permit the meaning of one to overlap that of the other, from the fact that each is used, as we have before seen, as descriptive of a specific class.

“Words will be interpreted with unusual extent of meaning and held to be generic rather than specific, and thus made to cover things which are collateral rather than identical, if the certain meaning of the parties and the obvious justice of the case require this extent of signification.” 2 Pars. Cont. (8th ed.) 496.

Applying what has been said, we must conclude that our duty ends here when we declare the common, ordinary meaning of the word “employee” and the word “subcontractor” and determine the status of appellant thereby. That being the case, we might stop at this point, as we have indicated that but one conclusion can be reached. But the matter has been presented with so much earnestness upon both sides and is so vital to the case that we will briefly support the views already expressed.

There is perhaps no better way to demonstrate what is the common signification of a word, the customary use thereof, than to consult standard dictionaries. Adjudged cases where the-word under consideration was used in the same relation as'in the case in hand are of greater weight than mere lexical definitions; but it is not common to find such identity of expression and identity of relation as to leave no reasonable doubt that in both instances the words were used in exactly the same sense. Webster defines “employee” as one who is employed; and “contractor” as one who contracts to 'do anything. Those definitions are very general, but they obviously suggest, applied specifically, that an employee is one who is employed to perform personal service; and a contractor, one who engages to do a particular thing, the idea of personal service not being a necessary element in the bargain. In the Standard Dictionary it is said, an employee is a person who is employed; one who works for wages or a salary or who is engaged in the service of another; a contractor is one who executes plans under a contract; a subcontractor is one who contracts with a principal contractor to do work embraced in the latter’s contract, — that is, obviously, one who contracts to execute some integral part of the work covered by the scheme of the principal contract. By the Century Dictionary we are informed that an employee is one who works for an employer; a person working for a salary or wages, usually clerks, workmen, laborers, etc.; that a contractor is one who contracts to furnish supplies or to construct work or erect buildings, or perform any work or service at a certain price or rate; that a subcontractor is one who takes a part or whole of the work from the principal contractor. Thus it will be seen, without any extended analysis of the various lexical definitions, that the significant element in the relation of an employee and his employer, specifically considered, is personal service; while the significant element in such relation between a contractor and his principal is the work as an entirety to be performed by him.

Now- a short review of the authorities and we are done. Counsel cites to our attention several: All of them that touch the question at all support rather than weaken what has been said. A note in 24 Am. & Eng. Ency. of Law (1st ed.) 140, containing this language, is cited: “A subcontractor” is “one who takes from the principal contractor a specific part of the work,” covered by the latter’s agreement. That serves the author to support this text: A subcontractor is “one who has entered into a contract, express or implied, for the performance of an act with a person who has already contracted for its performance.” The note is based on Farmers' L. & T. Co. v. C. & St. L. R. Co. 127 Ind. 250, 26 N. E. 784. It was claimed there that the term “laborer” should be deemed to be included in “subcontractors.” The court held otherwise, using substantially the quoted language. The gist of the decision is that a laborer is one who furnishes his personal service, of a grade commonly performed by persons working by tire day, while a subcontractor is one wbo agrees to do a particular act covered by a superior contract. Tlrat is against rather than in favor of appellant’s position. There is no distinction between the term “laborer” and the term “employee” as regards the element of personal service. Commonly understood, the latter is broader than the former in that it includes persons in a higher degree of employment. That is the result of what is said in Watson v. Watson Mfg. Co. 30 N. J. Eq. 588, and Gurney v. A. & G. W. R. Co. 58 N. Y. 358, cited by appellant’s counsel. What is said there by no means supports the idea that an employee is nearer the status of a subcontractor than a laborer. The usé which appellant’s counsel makes of the decisions indicates a misconception their purport. They are, when rightly considered, as decisive as a case in one court can be in another jurisdiction, that an employee is not a subcontractor under a statute conferring a lien privilege upon two distinct classes of persons, one called subcontractors and the other employees. In Balch v. N. Y. & O. M. R. Co. 46 N. Y. 521, it was said that the term “laborer” cannot be construed as designating one who contracts for and furnishes the labor and services of others, or one who contracts for and furnishes orfe or more teams for work whether with or without his own services, but that such a person is properly described as a contractor. Vane v. Newcombe, 132 U. S. 220, 10 Sup. Ct. 60, cited by respondent’s counsel, probably gives the distinguishing characteristic between a contractor and an employee, the language used by Fir. Justice Wood of the circuit court being quoted with approval, thus:

“It seems clean to us that Vane was a contractor with the company, not an employee within the meaning of the statute. We think the distinction pointed out by the circuit court is a sound one, namely, that to be an employee within the meaning of the statute Vane ‘must have been a servant, bound in some degree at least to the duties of a servant, and not,’ as he was, ‘a mere contractor, bound only to produce or cause to be produced a certain result, — a result of labor, to be sure, — but free to dispose of bis own time and personal efforts according to bis pleasure, without responsibility to tbe other party.’ ”

That has been cited many times in tbe federal courts. A significant instance is Frick Co. v. N. & O. V. R. Co. 86 Fed. 725, 32 C. C. A. 31, where tbe term “laborer” was treated as synonymous, except as to mere grade of service, with “employee,” and it was held that a person employed by a contractor of electric construction work, to construct tbe overhead line and string tbe feed wire at an agreed price per foot, was a subcontractor. Tod v. K. U. R. Co. 52 Eed. 241, 3 C. C. A. 60, is to tbe same effect. There a person who agreed to supply labor of others and teams at a certain price per day was said to be a contractor notwithstanding bis relations to bis employer were such that be was not bound to any particular length of service. Tbe same was held in Cochran v. Swann, 53 Ga. 39. A person who, by contract, got out cross-ties by tbe employment of other persons, was denied tbe privilege of a statute giving a lien to laborers upon tbe ground that be was a contractor. To tbe same effect is Avery v. Ionia Co. 11 Mich. 538, 39 N. W. 742.

Erom tbe foregoing it will be readily seen that appellant cannot reasonably be classed as an employee in respect to the work be contracted to do. He was as free to perform bis contract by tbe employment of others as tbe principal was to perform bis contract that way. Tbe element of personal service essential to tbe relation of a servant to bis master or a laborer to bis employer was entirely wanting. Appellant was clearly a subcontractor in the second degree. Tbe privilege of tbe lien statute does not extend to him.

By the Court. — Tbe judgment appealed from is affirmed.  