21 N.W.2d 644 | Wis. | 1946
Action brought by Arthur Kalson and wife against the Industrial Commission and Charles H. Buehler, Jr., as an *394 individual, and also against him and Gerald A. Collins, as copartners, to set aside an order of the Industrial Commission dismissing plaintiffs' application for compensation benefits for the death of their son, Robert Kalson, while in Buehler's employment. The circuit court affirmed the commission's order and from a judgment to that effect plaintiffs appealed. Plaintiffs' son, Robert Kalson, was fatally injured while engaged as an employee of the defendant, Charles H. Buehler, Jr., in his milk business. Buehler, likewise had a gasoline filling-station business, and also was engaged as a partner, with Gerald A. Collins, in a firm which operated a retail grocery business. The filling station was adjacent to the grocery-store premises. Kalson and Tom Mulligan were employed and paid by Buehler in the conduct of his milk business. Three or four other boys were employed and paid by the partnership in conducting the grocery business under the supervision of Buehler, or his wife or another woman during his absence. He employed no one to attend to the filling station, which with the coming of gasoline rationing was practically closed down except for occasional sales to customers who would be waited on by Buehler or his wife, or, on rare occasions, by one of the grocery-partnership employees, who were not paid extra for serving such customers. Those employees also helped Kalson unload milk which he *395 hauled to the grocery business to be stored overnight; and in exchange he, at times, helped them in the grocery-store work, without being paid anything by the partnership.
Upon those and other facts established by evidence introduced on the hearing conducted by an examiner of the Industrial Commission, he found and concluded:
". . . that the boys employed by the partnership had no contract of employment with Buehler, as an individual, and they were paid solely by the partnership; that the exchange of services so rendered was in the nature of an accommodation; that on the occasions when the deceased helped out the boys in the grocery store, and conversely, when the boys employed by the partnership helped the deceased on the milk route, there was no consent on their part as to a change of employer; and that, therefore, they cannot be considered loaned employees; that this is likewise true when the boys employed by the partnership on rare occasions pumped gas for Buehler, as an individual. That section
Therefore, the examiner ordered plaintiffs' application dismissed; and this order was affirmed by the commission and its order was in turn confirmed by the court.
Plaintiffs contend that it was not intended by sec.
"Every person, firm and private corporation (including any public service corporation) who usually employs three or more employees, whether in one or more trades, businesses, professions or occupations, and whether in one or more locations," —
to insert the entity theory of partnership into the Workmen's Compensation Act; that in this state a partnership is not considered a separate entity, but is an aggregation of individuals who compose it; and that neither the compensation act nor the general law supports the commission's and Buehler's contention that a partnership is a distinct entity. Plaintiffs rely in part upon the statement in Westby v. Bekkedal,
It is conceded that the word "firm" as used in the phrase "Every person, firm and private corporation (including any public service corporation) who usually employs three or more employees," which is in sec.
Plaintiffs also contend that irrespective of the employees working for the partnership in its grocery business, Buehler was subject to the compensation act because he had three employees in his milk and gas businesses during the year 1944. As basis for this contention plaintiffs claim testimony, which was given by Buehler and also Gene Reinking and Francis Mulligan, that while they were employees of the partnership they also waited several times on customers at the filling station at Buehler's request or with his consent, admitted of finding that Reinking and Mulligan were employees of Buehler in also his gas business under an implied contract of hire. Even if that testimony might be deemed to admit of such a finding, it does not follow that the examiner erred in finding to the contrary, as stated above. At most there was presented under the evidence on that subject an issue of fact upon which the examiner's findings and the commission's affirmation thereof are conclusive. If the employees of the grocery business did occasionally wait on a filling-station customer they did not thereby necessarily become employees of Buehler individually in either his gas station or his milk business. The evidence is to the effect that they were paid solely by the partnership, and they had no contract of employment other than with it, and knew that they were employed by it. It does not appear that they expected or that it was contemplated by them or Buehler, that they were to receive anything for waiting on the filling-station customers, or that there was any intention or consciousness on their part, or on the part of Buehler that they should become also his employees in his individual capacity. Consequently, it was within the province of the examiner and the commission to find and conclude that the evidence did not establish any contract creating any such employment relationship between them and Buehler in his individual capacity.
By the Court. — Judgment affirmed. *399