172 Wis. 554 | Wis. | 1920
This case comes before us in quite an unusual manner. Although it involves the rights of a laborer under the workmen’s compensation act, the employee takes no active part in this appeal. The contest is between two parties who both deny liability, and each alleges that the other was the employer of the servant, Massino, and liable for any compensation which may be due him.
It is alleged in the petition of Cayll, respondent, that Mas-sino has claimed that both are liable, although, so far as the record shows, he has filed no formal claim against either.
On the main question litigated there was very little conflict in the evidence, although very different inferences were drawn therefrom.
The statute, as in force at the time of the injury, prescribed that liability shall exist against an employer for any personal injury accidentally sustained by his employee where the following conditions occur (inter alia) :
“(2) Where, at the time of the accident, the employee is performing service growing out of and incidental to his employment.” Sec. 2394 — 3, Stats. 1915.
The following, in part, were defined as constituting employers as above used:
“(2) Every person, firm, and private corporation (including any public service corporation), who has any person in service under- any contract of hire, express or implied, oral or written, ...” Sec. 2394 — 4, Stats. 1915.
The term “employee,” as used in the act, was construed to mean (in part):
“(2) Every person in the service of another under any contract of hire, express or implied, oral or written, . . . but not including any person whose employment is but casual or is not in the usual course of the trade, business,*558 profession, or occupation of his employer.” Sec. 2394 — 7, Stats. 1915.
In finding that Cayll must indemnify Massino the industrial commission relied very much on the facts that he was hired and paid by the respondent and that he believed that the respondent was his employer. In finding that the appellant company must pay the indemnity the trial judge relied on the facts that Massino was injured while engaged in performing labor for the Gas Company which had no, connection with the business of Cayll; that when the injury happéned he was doing his work under the immediate direction and control of the foreman of the Gas Company; and that although he may have supposed that Cayll was his “boss,” he had also stated that he was working for the Gas Company.
Under the undisputed facts there might well be doubts in the mind of Massino whether Cayll or the Gas Company was his employer, and we do not consider that his opinion on that subject should have much significance in arriving at a decision as to his rights.
In determining whether Massino was an employee of the Gas Company there are other facts to be considered which we regard of greater importance. Although in the employ of Cayll, he consented to be transferred to the service of the Gas Company. The injury occurred as part of the hazards of the business of that company, during work over which Cayll had no control and while Massino was solely under the direction of the appellant. While there was no express contract between Massino and the Gas Company there was, within the meaning of the act, an implied contract. Sub. (2), sec. 2394 — 7, Stats. 1915. While in some respects the employee was subject to the control of Cayll, the situation was such that the Gas Company was the proprietor of the work being carried on, and could at all times determine how the work should be done and whether it should stop or continue.
“Where the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service, . . . the latter shall, for the purposes of this act, be deemed tp continue to be the employer of the workman whilst he is working for that other person.” Stat. 6 Edw. VII. ch. 58, sec. 13.
This act was considered by the committee of our legislature which framed the workmen’s compensation act, and it was brought to the attention of the legislature. It is fair to assume that the legislature, by failing to adopt this section, intended that the common-law rule would continue so far as applicable to such a transfer of service as is here involved.
Very able and elaborate briefs have been filed on this appeal by counsel on both sides citing many cases bearing upon this interesting question. Without commenting upon them, we cite a few of the many decisions which in our opinion sustain the view that when a workman- is transferred with his own consent, as in this case, by an employer to a special employer, the latter may become liable to pay indemnity when he is in the exclusive control and management of the work in which the injury is received. Scribner’s Case, 231 Mass. 132, 120N. E. 350; Coughlan v. Cambridge, 166 Mass. 268, 277, 44 N. E. 218; Shepard v. Jacobs, 204 Mass. 110, 90 N. E. 392; Kucharuk v. McQueen, 221 N. Y. 607, 117 N. E. 1073; Dale v. Huai C. Co. 175 App. Div. 284, 161 N. Y. Supp. 540; Westover v. Hoover, 88 Neb. 201, 129 N. W. 285. See Standard Oil Co. v. Anderson, 212 U. S. 215, 29 Sup. Ct. 252.
The industrial commission expressed the view that the' Gas Company was under a moral obligation to indemnify Massino, but on legal grounds felt bound to hold that the
It is suggested in the brief of- the attorney general that Massino had the right to look to either, employer, and New York cases were cited to support that position. It is our view that there might be such a state of facts that both the general and the special employer would be liable. In view of the findings of the commission in this case and the terms of the compensation act, however,- we find it unnecessary to decide this question in the present proceeding. We reserve our decision upon this point until it is necessarily presented.
The finding of the commission, approved by the trial court, as to. the fact of disability and the- amount of the award is sustained by the evidence.
The point was made that the finding of the commission that Cayll was liable instead of the Gas Company ^conclusive. We deem it a sufficient answer that there was practically no conflict in the evidence, and that the relationship sustained by Massino to the other parties was a question of law on the undisputed evidence and the findings of the com-' mission. Moreover, the commission made no direct 'finding that the workman was in the employ of Cayll or of any fact inconsistent with this opinion.
By the Court. — Judgment affirmed.