Hasenfus v. Industrial Commission

184 Wis. 281 | Wis. | 1924

Rosenberry, J.

Plaintiffs urged two propositions: first, that John Hubert was not in an employment which was in the usual course of the business of the plaintiff William Hasenfus; second, that Dennis Hubert was an independent contractor.

(1) Sub. (4) of sec. 2394 — 7, Stats., provides who shall be considered an employee, and excepts "any person whose employment is not in the usual course of the trade, business, profession, or occupation of his employer.” The contention of plaintiffs is that the employment in which John Hubert was engaged was not one incidental to the running of an amusement park as usually conducted, but that it was exceptional and outside of the usual methods of conducting that business, and it is argued that on no other Fourth of July within many years previous had there been a display of fireworks in this particular park. It is said that there is a' distinction between the terms “usual business” and “usual course of businessthat the latter expression is much more restricted than the former. The Industrial Commission found against the plaintiff’s contention. The plaintiff was engaged in the business of operating a pleasure resort, and in the usual course of his business he did those things which were reasonably calculated to attract patronage to his place. The employment of fireworks upon the Fourth of July for such a purpose is a usual and ordinary one, and while the employment itself was but temporary, the very nature of the plaintiff’s business was such that persons were employed temporarily for the purpose of attracting crowds and patronage to plaintiff’s resort. The usual course of his business was to provide unusual attractions and the very nature of the business required that they be of a temporary character. This case is ruled by Holmen C. Asso. v. Industrial Comm. 167 Wis. 470, 167 N. W. 808; F. C. Gross & Brothers Co. v. Industrial Comm. 167 Wis. 612, 167 N. W. 809.

(2) The deceased was employed by Dennis Hubert pursuant to the directions given by the plaintiff Hasenfus. He did not receive his compensation from Dennis but from Hasenfus, and there is no evidence which brings his case within the doctrine of Weyauwega v. Industrial Comm. 180 Wis. 168, 192 N. W. 452. What was done here, so far as the record discloses, was done under and pursuant to the direction of Hasenfiis, and Dennis Hubert was in no aspect of the case an independent contractor. The fireworks were furnished by Hasenfus, set off upon his premises, for his benefit, and under his direction.

By the Court. — Judgment-affirmed. Appellants to.pay clerk’s fees, otherwise no costs to be taxed.