288 N.W. 778 | Wis. | 1939
Action brought by Wilbert Kammler against the Industrial Commission, the city of West Bend, and its compensation insurance carrier, for the vacation of an order made by the Industrial Commission dismissing the plaintiff's application for the payment of workmen's compensation by the city of West Bend. Defendants' answers set forth proceedings before the commission which resulted in findings and conclusions that the applicant was not an employee of the city of West Bend, and an order dismissing his application. That order was affirmed by the circuit court and the plaintiff appealed. The plaintiff and appellant, Wilbert Kammler, contends that the circuit court erred in affirming the Industrial Commission's order dismissing his application for workmen's compensation on the ground that he was not an employee of the city of West Bend when he was injured. The facts are undisputed. Kammler's leg was fractured while playing baseball as a member of a team sponsored by the athletic board of the city. The appointment of that board had been duly made by the mayor and confirmed by the common council under sec. 62.28, Stats. The board organized a baseball team, arranged a schedule for games with five other teams constituting a league, and engaged Kammler and other players, who were to be paid by the city. Admissions were *175 charged for attendance at most of the games, but the receipts were insufficient to pay all expenses.
The Industrial Commission denied Kammler's application for compensation, and the circuit court affirmed the commission's order on the ground that the athletic board was not authorized to employ a baseball player for exhibition games, and that therefore Kammler was not an employee of the city. Kammler contends that the athletic board had power and authority to hire him as a city employee by virtue of sec. 62.28, Stats., which provides that, —
"(1) The common council of any city of the fourth class may provide the equipment, supervision, instruction and oversight necessary to carry on public, educational, and recreational activities, and for such purpose appropriate annually from the general fund such sums as the council may deem expedient, but not to exceed two tenths of a mill of the assessed valuation of such city.
"(2) The mayor of any such city, subject to confirmation by the common council, may appoint a board of not less than three and not more than five in number as an athletic board to administer such activities, and disburse such fund. . . ."
To constitute Kammler an employee within the definition of an "employee" as that term is defined in sub. (1) of sec.
Likewise, we cannot sustain Kammler's contention that, even if the athletic board was not empowered to employ baseball players for hire under sec. 62.28, Stats., the board's action was nevertheless binding upon the city because the latter was empowered to do so under sec.
By the Court. — Judgment affirmed.