189 Wis. 471 | Wis. | 1925
Lead Opinion
.The following opinion was filed October 20, 1925 :■
Two questions are presented here for our consideration: First, Was the defendant Zuehlke in the employ of Albert Guse, who was an independent contractor? and second, Did the fact that the plaintiff for a short time employed more than three men bring him under the workmen’s compensation act without any other or further election on his part ?
Upon the first proposition we think it too clear for argument that Albert Guse was not an independent contractor. A determination of the second question requires a statement of the history of the act.
The workmen’s compensation act was ch. 50 o:f the Laws
“On and after September 1, 1913, every employer of four or more employees in a common employment shall be deemed to have elected to accept the provisions of sections 2394 — 3 to 2394 — 31, inclusive, unless prior to that date such employer shall have filed with the industrial commission a notice in writing to the effect that he elects not do accept the provisions hereof.”
On September 8, 1914, an employee, Haylock, was injured on the farm of his employer, Kelley. Upon a hearing before the Industrial Commission the Commission found that both Kelley and Thro'nson, whose silo Kelley was employed in filling, came under the act because they employed more than four men in threshing and corn shre'dding, silo filling, or tobacco work at times. An action was brought to review this determination of the Commission. The court said:
“The legislature did not contemplate that mere temporary though regularly .recurring employment brought the employer within the act-. Its language must be taken in its ordinary and usual significance. In ordinary language when it is said that an employer employs four or more employees in a common employment it is meant that he usually does so, or that he does so most of the time, so that such employment becomes the rule and not the exception. The act operated upon and was intended to include only such employers as ordinarily or for some considerable length of time employ four or more emplees in a common employment.” Kelley v. Haylock, 163 Wis. 326, 157 N. W. 1094.
By ch. 624 of the Laws of 1917 the act was amended by striking out the words'“On and after September 1, 1913,
“If any employer shall at any time after August 31, 1917, have three or more employees in a common employment he shall be deemed to have elected to accept the provisions of sections 2394 — 3 to 2394 — 31, inclusive, unless prior to that date such employer shall have filed with the industrial commission a notice in writing to the effect that he elects not to accept the provisions hereof.”
By the interpretation placed upon the section prior to the amendment in 1917, it was held that mere temporary employment did not bring an employer within the act, so- that, as construed by 'the court, the section prior to the amendment read as if the word “customarily” or some such similar word was inserted, so that the act did not apply unless the employer customarily or ordinarily or usually had four or more employees. It appears in this case that the plaintiff ordinarily had but one employee, the claimant Zuehlke, and that he was not regularly employed throughout the year but from time to time as occasion arose. It also appears that for short times and for temporary purposes the plaintiff had, in addition to Zuehlke, Oscar Guse and Nick Fries in his employment, and other men were employed for very short times. These were on special jobs such as raising corn cribs, moving, and like operations.
Plaintiff contends that as construed by the court in Kelley v. Haylock, 163 Wis, 326, 157 N. W. 1094, the statute was to he read as follows: “On and after September 1, 1913, every employer customarily or ordinarily having four or more employees in a common employment shall be deemed to have elected to accept the provisions of sections 2394 — 3 to 2394 — 31, inclusive,” etc. That by the amendment of 1917 this language was not disturbed, and that therefore the'statute-should now be construed as if it read: “If any employer shall at any time after August 31, 1917, cus
On behalf of the Industrial Commission it is contended that, if the statute be so construed, the insertion of the words “at any time” was purposeless, and as so construed they have no meaning, and that all that would have been necessary for the legislature to do would have been to change the word “four” to “three” and change the date from September 1, 1913, to August 31, 1917, to accomplish the legislative purpose, and therefore the statute must be construed to mean that if a person has three or more employees at any time, however short, he thereby elects to come under the act. There is much force to the latter contention, which is ably supported by the brief of the attorney general. It is a matter of common knowledge that there are many men engaged in draying, teaming of various sorts, and many other occupations, who for very brief periods employ one or two men for a particular purpose, as, for instance, to unload an engine or do some other particular piece of work that for a few hours, or perhaps one'or two days, requires additional help. They may ordinarily or customarily have one employee and under the exigencies of a particular situation be required to employ additional help for a few hours or one or two days. Under the construction contended for by the Industrial Commission, the temporary employment under such circumstances would amount to an election to come under the act. Having thus brought himself under the act, the employer could not release himself from the liabilities imposed by the act except in accordance with its terms, which could not be earlier than the 1st day of July following. The employer thus brought under the act is required to insure the payment of any compensation which' may become due under the act, and for failure to do so may be fined and imprisoned. Sub. (3), sec. 102.28, Stats. He also forfeit's
If the legislature intended that a person having three or
Sub. (4) of sec. 102.07, being the definition of employee, is as follows:
“Every person in the service of another under any contract of hire, express or implied, oral or written, including aliens, all helpers and assistants of employees, whether paid by the employers or employee, if employed with the knowledge, actual or constructive, of the employer, and also including minors of permit age or over (who, for the purposes of section 102.08, shall be considered- the same and shall have the same power of contracting as adult employees), but not including any person whose employment is not in the usual course of the trade, business, profession, or occupation of his employers, unless such employer has, by an affirmative election, in the manner provided in subsection (1) of section 102.05, specifically elected to include domestic and other employees under coverage of the act.”
While this definition as construed by the court would bring the employees of the plaintiff within its terms (see F. C. Gross & Brothers Co. v. Industrial Comm. 167 Wis. 612, 167 N. W. 809), yet it indicates that it was not the intention of the law to have a momentary or brief period of service covered by the provisions of the act and therefore casual employments were excepted. Why a very brief employment, although it relates to the ordinary business of the employer, should bring him within the terms of the act and a casual employment not bring him within the terms of the act is difficult to understánd. The reasoning that applies to one applies to the other. Why the hiring of one man with
' It is held that under the facts and circumstances of this case the plaintiff was not within the terms of the act, not having ordinarily three or more employees in his employment. In view of this conclusion, other questions raised by the plaintiff need not be considered.
By the Court. — Judgment of the circuit court is reversed, with directions to enter an order setting aside the award of the Industrial Commission and directing the dismissal of the proceeding.
Dissenting Opinion
(dissenting). By ch. 599, Laws 1913, the following provision was inserted in the compensation act:
“On and after September 1, 1913, every employer of four or more employees in a common employment shall be deemed to have elected to accept the provisions of sections 2394 — 3 to 2394 — 31, inclusive, unless prior to that date such employer shall have filed with the industrial commission a notice in writing to the effect that he elects not to accept the provisions hereof.”
This provision was construed in Kelley v. Haylock, 163 Wis. 326, 157 N. W. 1094, to mean that every employer customarily or ordinarily having four or more employees in common employment shall be deemed to have elected to accept the provisions of the compensation act. At the very next session following the decision in Kelley v. Haylock, supra, the legislature amended such provision of the compensation act to read as follows:
“If any employer shall at any time after August 31, 1917, have three or more employees in a common employment he shall be deemed to have elected to accept the provisions of sections 2394 — 3 to 2394 — 31, inclusive, unless prior to that date such employer shall have filed with the industrial commission a notice in writing to the effect that he elects not to accept the provisions hereof.”
It will be seen that the legislature ex industria attempted to escape the construction placed upon this section of the law by this court in the case of Kelley v. Haylock, supra. It used language that is plain and unequivocal. It said that if an employer should have at any time three or more persons in his employment, he would be deemed to have elected to come under the act, unless prior to that time he filed an election not to come under the act. It is within
It' seems to me that' the language employed by the legislature to declare the employer under the compensation act, who should not have elected otherwise, at any time he should employ three or more persons, is as plain as the English language can make it. It is the universal rule of statutory construction that plain and unambiguous language is not subject to construction by the courts. Construction may be resorted to only when ambiguity exists. Rusk Farm D. Dist. v. Industrial Comm. 186 Wis. 232, 234, 202 N. W. 204; Wisconsin P. S. Co. v. Railroad Comm. 185 Wis. 536, 544, 201 N. W. 977.
It seems to me that, because to give the language of the act its plain and obvious meaning may work a hardship in some cases, the court warps the plain and unambiguous significance of simple words to mean the exact opposite of the legislative intent. This language has béen interpreted and enforced by the Industrial Commission as in this case, for more than seven years, without any stich complaint.
By reference to the public bulletins of the Industrial Commission, circulated free to employers and employees, it will be seen that immediately after the amendment of 1917 the Commission called specific attention of employers to the amendment and its purpose to change the rule laid down in Kelley v. Haylock, supra, as follows:
“In the case of Kelley v. Haylock, 163 Wis. 326, 157 N. W. 1094, the supreme court held that' an employer must usually have four or more persons in common employment in order to subject himself, automatically, to the compensation act. This amendment has the effect of not only subjecting an employer of three or more to the act, but doing so regardless of the period of employment, unless he has previously elected otherwise.” (Bulletin of Industrial Commission, issued September 1, 1917, p. 4.)
Bulletins were issued in 1919, 1921, and 1923, in each of which the Commission reiterated its. interpretation in
In this case the employer does not complain that he did not understand the law as interpreted by the Commission. On the contrary, it is obvious that he did so understand it and resorted to a palpable subterfuge to escape its effect, instead of complying with the act by filing his election not to come under it. In other words, he attempted to reserve to himself the unlawful advantage of electing after the accident which position would be preferable for him to assume. This he did, and in this he has this court’s approval. I think the decision is wrong. I agree with the construction of the act given by the Industrial Commission and the learned circuit judge.
I therefore respectfully dissent.
Rehearing
The following opinion was filed April 6, 1926:
(on rehearing). A motion for a rehearing was granted and the case has been again exhaustively argued and carefully reconsidered in the light of the reargument, as a result of which the court has concluded that it was in error in its former decision and that the statute in question should be construed literally as it reads, A complete history of the statute is stated in the dissenting opinion, embracing much material that was not before us on the former hearing. While it is true, as stated in the original opinion, that it seems unreasonable that a momentary employment of a third employee should bring an employer within the terms of the act, he may nevertheless avoid that situation by electing in accordance with the provisions of the act not to come under
Counsel for plaintiff contend that the statute violates the provisions of the state and federal constitutions. We find' no basis for this contention.
By the Court. — The mandate heretofore entered is hereby vacated and set aside and the judgment appealed from is hereby affirmed.
