297 N.W. 429 | Wis. | 1941
This was an action to set aside an order and award of the Industrial Commission requiring plaintiffs to pay certain sums as compensation for injuries received while defendant Tetting was in the employ of plaintiffs, Fred A. Eberlein and M. G. Eberlein, copartners doing business as Eberlein Eberlein. From a judgment setting aside the award dated December 5, 1940, defendants appeal. The material facts will be stated in the opinion. The question in this case is whether Eberlein Eberlein, the employers, and Willard Tetting, the injured employee, were subject to the provisions of the Workmen's Compensation Act. Fred A. Eberlein and M. G. Eberlein own and operate a number of farms, one of which *557 is called the Wildwood farm. This farm contains three hundred acres, and most of the acreage is devoted to general farming operations. The partnership, however, devote a small portion of the farm to the raising of foxes and another small portion of the farm to the raising of ginseng, a root considered by the Chinese to have medicinal properties, and which, when harvested and prepared for use, is shipped to China. One checking account was maintained for the farm as a whole, but separate books were kept for the "Shawano Ginseng Gardens" and the "Shawano Silver Black Fox Company," and these were treated and operated as separate businesses. At one time the partnership carried compensation insurance on its farm operations, but in 1931 they withdrew from the act "in so far as it affects farming. It will continue to operate under said act in so far as it affects the raising of foxes or any other of its business not within the designation of farm labor." It had an insurance policy in effect covering the fox farm and the ginseng gardens. Tetting, the employee, did general work on the farm. He also spent some time working on the fox farm and some time in the ginseng gardens. He was injured while husking corn. The Industrial Commission found that the employers and employee were under the act, and awarded compensation. The circuit court set aside the findings and order of the commission.
The question upon this appeal is whether ginseng raising is farming. Ginseng is raised under sheds, it being necessary to have plenty of shade in order to grow the plant. Beds are then made and elevated about eight inches from the ground, lined with boards and planks to make them about six feet wide and one hundred feet long. The seed is placed in these beds and takes some eighteen months to germinate. The small plants are allowed to stand for two years and then are transplanted. They must grow for five or ten years longer before a marketable crop can be harvested. The garden is hand-worked in much the same way as a hothouse. A *558 relatively large amount of labor is required as compared to ordinary farm work — at least four workmen to the acre. The fox farm is operated by building pens and sheds for the foxes which are kept in pairs and which have to be fed and cared for, and ultimately pelted and sold. This also requires specialized and different work from ordinary farm labor.
The case is not without some difficulty, but we conclude that it was properly disposed of by the trial court. In the case of Pierce v. Industrial Comm.
By the Court. — Judgment affirmed. *560