16 N.W.2d 800 | Wis. | 1944
Action by John Cherry and others, doing business as C.F. H. Mining Company, and others, against the Industrial Commission and Mary Howell Bondurant and others to review an award of the Industrial Commission. From a judgment entered July 6, 1944, confirming the award, the plaintiffs appeal. The facts are stated in the opinion. Eight miners were killed in two successive fails of the ceiling of a lead mine. Two were employees of the owner of the mine in which the ceiling fell which we will call the "Cherry mine." The two men were buried in a vast mass of rock and earth. There were only five men available at the Cherry mine for rescue of the buried men and aid was necessary if the men were to be rescued alive. It was not known whether the men were killed or whether if not they could be rescued alive. Farrey, one of the mine owners, sent one of his employees over to the Gill mine which was owned by other parties for help. The foreman of the Gill mine, on being told of the cave-in and the burying of the men, said "We will be right over." He told employees who had not gone down in the mine yet "to go on ahead" and he would go down in the mine and get the rest and "we will bring some tools and be right over." Six employees of the Gill mine owners to whom this direction was given went right over and the foreman and the other Gill mine employees followed. While the six men were working at the rescue of the two buried men the second cave-in occurred and they were all buried and dead when uncovered.
The examiner for the commission found that Howell, one of the six buried employees of the Gill mine, was an employee of the Cherry mine owners when engaged in the rescue work, and that the applicant for compensation, the mother of Howell, was wholly dependent on him for support. An award was made to her on that basis. *281
The owners of the Cherry mine contest the award on two grounds. They claim, (1) that Howell was an employee of the Gill mine owners and that the owners of that mine are liable for compensation; and (2) that the deceased's mother was only partially dependent on him for support.
(1) As to whose employee Howell was, the case is governed by Conveyors Corp. v. Industrial Comm.
It is urged here that it was not known whether the two buried Cherry mine employees could be rescued alive, but *282 neither was it known that Collins could be resuscitated. The two cases are thus identical in both respects.
The appellants contend that the instant case is ruled byRhinelander Paper Co. v. Industrial Comm.
In the instant case the work of rescue in which Howell was engaged was not being done in the regular course of the Gill mine owners' business. That work was not done for the benefit of those owners, and could not result in advantage to their business, and they had no duty to aid in the work of rescue. The duty of rescue devolved solely upon the Cherry mine owners. The work of rescue was done in the course of the performance of that duty and at their direction and thus in the regular course of their business. Thus they were Howell's employers.
(2) The deceased wholly supported a family consisting of himself, his widowed mother, sixty-five years of age, his sister Jennie, a deaf mute, forty-two years of age, and two minor nephews Robert and Joyce Howell, aged nine and ten years. The family lived in a house worth about $1,400, in which the mother had a life estate. The mother must be held to have contributed shelter toward the support of the family but the net rental value, less taxes, insurance, and water rate, *283
all which the deceased paid, and disregarding physical upkeep, amounted to about $100 per year. The value of the life estate was worth "slightly over $400." The commission found the contribution of the mother to be de minimis non curat lex
within the rule of McKesson-Fuller-Morrisson Co. v. IndustrialComm.
By the Court. — The judgment of the circuit court is affirmed.