7 N.W.2d 881 | Wis. | 1943
Action by Richard Hansen against the Industrial Commission of Wisconsin and another to review an interlocutory award of the commission under the Workmen's Compensation Act. From a judgment affirming the award the employer appeals. The facts are stated in the opinion. Action was brought by the plaintiff to review an award of the Industrial Commission under the Workmen's Compensation Act. The circuit court affirmed the award. The plaintiff has appealed to this court from the judgment of affirmance. The Workmen's Compensation Act, incorporated in ch. 102, Stats., will hereinafter be referred to as "the act."
The evidentiary facts of the case are entirely without dispute. The plaintiff is a carpenter. For ten years prior to 1931 he was in business as a contractor erecting buildings. He then carried industrial compensation insurance. In April, 1931, he abandoned that business and canceled his insurance. From that time until June, 1940, he did no contracting business whatever and had no one in his employ. He was for the entire nine years in the employ of others at an hourly wage or employed in the state department of agriculture as an apiary inspector. In June, 1940, he took a contract for constructing *295 one building and he then intended from then on to do business as a building contractor. He employed Hlavacek to work with him in the constructing of it. Hlavacek was injured while so engaged on August 1, 1940, and applied to the commission for compensation.
Up to that time the plaintiff had at no time three employees; had taken out no compensation insurance; and had made no election to bring himself within the act in conducting his newly instituted contracting business by filing notice with the commission that he accepted the provisions of the act. The commission held that under the provisions of sub. (3) of sec.
The statutes referred to so far as here material provide as follows:
Sec.
Sec.
(2) An employer (Hansen) is "deemed to have elected to accept the provisions" of the act if he at any time has three or more employees, unless he shall have filed with the commission a notice in writing that he elects not to accept, and an employer so coming under the act may withdraw as provided in sub. (1).
(3) An employer who takes out compensation insurance is deemed to have thereby elected to come under the act, and such election shall remain in force until withdrawn as provided in sub. (1).
Thus at the time of Hlavacek's injury the plaintiff had taken none of the three steps provided by the statutes stated for bringing him under the act in conducting the newly instituted contracting business. The commission held him to be under the act solely because he had been under the act nine years before and had not withdrawn in form as provided by the act the election to be under the act in the conduct of his former business effectuated by his then carrying compensation insurance, although he had canceled that insurance when he abandoned the business. By the same token, had the lapse of time between quitting the old and starting the new contracting business been forty instead of nine years, Hansen would now be subject to the act. And by the same token, had Hansen died after quitting the old business, he would yet be under the act, and would remain so through eternity.
Obviously there must be some limit to a literal application of the statute, else absurdities and non sequiturs will result. One cannot be an employer unless he has employees, and for nine years Hansen had no employees and was therefore not an employer, and not being an employer at all he was not for that nine years an employer under the act. His status as an employer was just as effectively terminated by his abandonment of his business as it could have been by filing a written withdrawal of his previous acceptance with the commission. It was just as effectively terminated as that of the employee was *297
terminated without any notice of discharge by the employer or quitting by the employee by an injury to the employee of such nature that it prevented him from ever again resuming the employment in which he was engaged in Montreal MiningCo. v. Industrial Comm.
It is urged that by analogy the rule should be applied in the instant case that holds an employer is subject to the act because he has employed three employees at a time and later employs only one, and does not withdraw his election to be under the act as provided by the act. But it is of significance that the reasons for holding that such an employer remains subject to the act do not apply to the existing situation. That reason is that neither the single employee nor the Industrial Commission will know, nor can either ascertain, if the single employee is injured in course of his employment whether he is entitled to recover under the act or is subject to the rules for recovery that obtain at common law. The employer in such case could play fast and loose. He could hold the employee to the common-law rule of liability, or limit his recovery to that prescribed by the act, whichever might be to his advantage. That reason does not apply where there is not a continuance of business, but instead a newly instituted one. In case of the latter, where there has been only a single employee and no filing of acceptance of the act by the employer, the employee knows or may ascertain the nonfiling of acceptance, and neither the employer nor the employee can pick or choose. Guse v. Industrial Comm.
A fact not heretofore stated also seems to us as matter of law to rule this case. It is undisputed that after abandoning his business in 1931 and canceling his insurance Hansen received a communication from the commission "inquiring why" the insurance was canceled. At that time he filled out and sent to the commission "a certain form which the commission asked" him to fill out and return. He does "not know whether it was an official withdrawal paper or not" — does "not recall what the paper was." The record discloses nothing further relating to this matter. On the assumption that this court takes judicial notice of the records and files *299
of the Industrial Commission, as it does of those of the public service commission, Wisconsin Power Light Co. v. Beloit,
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with instructions to enter judgment vacating the award of the commission.