(dissenting). The primary questions involved in this case are whether Robert Hendrickson in picking the corn was working for Gant under a contract of hire, express or implied, or was a mere volunteer; whether an employer-employee relationship existed and presented a question of fact for the commission; and whether the commission’s findings are conclusive if supported by any credible evidence.
It is undisputed that Robert Hendrickson, in partnership with his father and brother, operated a farm owned by his father, which was about four miles away from one of several farms owned and operated by Bernard Gant. In the spring of 1948, the Hendricksons rented 71 acres of one of Gant’s farms from him and put in a crop of oats and corn. The rental agreement as to the remainder of said farm was that Gant supply half of the fertilizer and half of the seed, and receive half of the net proceeds from the crops produced thereon. Gant helped plant corn on that farm for a couple of days in the spring of 1948. Nothing was said about payment for this, and nothing was paid; and in doing this Gant figured that he was helping himself.
In the fall of 1948, the Hendricksons bought a corn-picking machine, to use for harvesting their corn and doing what custom work they had time for. On November 15, 1948, the corn-picking machine was being used by Robert Hendrickson, *73who was picking corn on the land rented from Gant, who happened to stop by on his way to look at some cattle. In an ensuing conversation, Robert told Gant not to worry about the standing corn on his home farm; to quit picking it by hand, and that he would go over and pick it for him with the corn-picking machine. Gant did not ask Robert to do anything and nothing was said about pay for this and none was expected.
On November 29th, Gant stopped at Hendricksons and left word with the father that Robert could come and pick the corn. That afternoon, Robert, on his own accord, took a tractor, corn picker, and two wagons to Gant’s home farm and the next day he started to pick the corn. Gant showed him the field to be picked and suggested where he wanted him to start. During the course of picking Gant’s corn, the next day, Robert’s machine clogged up, and he attempted to clean it while the power was on with the result that his right arm was seriously injured.
On the evidence taken in proceedings before it, the Industrial Commission found that at the time of Robert’s injury, he was an employee of Gant; and on said findings the commission awarded compensation benefits to Robert. The trial court adopted the commission’s findings and sustained the award of benefits to Robert.
Appellants contend that where, as in this case, the facts are not in dispute, the determination of whether the relationship of employer-employee existed constitutes a conclusion of law, and the determination of the commission is not conclusive. Tesch v. Industrial Comm. 200 Wis. 616, 229 N. W. 194; Gomber v. Industrial Comm. 219 Wis. 91, 261 N. W. 409. The mere fact that a conclusion of law is denominated a finding of fact does not make it such, or prevent it from being held to be a conclusion of law. Voswinkel v. Industrial Comm. 229 Wis. 589, 595, 282 N. W. 62. As in the case at bar, the facts in that case bearing on the alleged employer-*74employee relationship were undisputed; when the commission stated “It is, therefore, further found that at the time of his injury applicant was an employee of respondent, . . it really was describing the commission’s conclusions, as suggested in Voswinkel v. Industrial Comm., supra.
Gant and his insurer contend that at the time of Robert’s injury he was not performing work for Gant as his employee, because he was not in Gant’s service under any appointment or contract of hire, express or implied — as is necessary in order to constitute him an employee under sec. 102.07 (1), Stats.; that Robert had voluntarily entered upon and was performing that work at will, and was not obliged to enter upon or continue with the work; and that Gant was under no obligation to accept or keep him at work, or to compensate him therefore; and no such compensation was received or expected by him. As there existed between them no express or implied obligation whatever on the part of either, there was no such relationship as is essential to constitute the status of employer and employee in order to render the former liable for compensation within the meaning of the Compensation Act. As stated in Bituminous Casualty Co. v. Industrial Comm. 245 Wis. 337, 340, 13 N. W. (2d) 925:
“By the language of the act, sec. 102.07 (1), Stats., to be within the act the applicant m'ust be ‘in the service . . . under . . . contract of hire, express or implied.’ This implies that the injured person must be under duty, legally obligated, under his contract to do the thing he is doing when injured, and there was no such duty or obligation here.”
Robert volunteered to do the work in question for Gant without compensation, but was under no obligation to do it ; and if he had refused to perform the work, that would not have subjected him to discharge or any penalty. As stated in Wendlandt v. Industrial Comm. 256 Wis. 62, 67, 39 N. W. (2d) 854:
*75The foundation of the Workmen’s Compensation Act is the existence of an actual employer-employee relationship. It was designed to serve primarily the interests of contractually related individuals, the employer and the employee. That relation when established may place both under the provisions of the act. No power, however, exists in any branch of government to reach out and force into that relation one who is not an employee, but who is in fact and law the servant of a stranger to the employer.”
As stated in Rice Lake Golf Chib, Inc., v. Industrial Comm. 215 Wis. 284, 287, 254 N. W. 530:
“The relation of employer and employee does not arise as a result of benefits conferred. There must be either expressly or by implication a contract of hire.” See also Koski v. Industrial Comm. 233 Wis. 1, 288 N. W. 240.
Consequently, I cannot agree with the conclusion reached by the court.