160 Wis. 316 | Wis. | 1915
As indicated in the statement, prior to the time respondent was injured, appellant duly elected to come-under the -Workmen’s Compensation Act, but its employee had not. So by the plain language thereof defendant was-entitled to its common-law defenses of assumption of the risk,, negligence of a fellow-servant, and contributory negligence. The policy of the law is to preserve such defenses to an employer who shall elect to come under the act, respecting an employee who does not, as a constitutional method of coercing both parties to accept the benefits and burdens of the new system in place of those of the old one.
We agree with counsel that the statutory status of appellant when the injury occurred is very plain. This language conveys no ambiguous meaning: In case of injury as in the-particular instance, “It shall not be a defense that the employee either expressly or impliedly assumed the risk” and,.
It is suggested that appellant waived the statutory preservation of its common-law defenses by objecting to respondent having the benefit of the Workmen’s Compensation Act. That does not appear to have merit. Respondent made his own place, as regards rights and remedies, by failure to elect to ■come under the special statute and failing to appeal from the decision of the commission. Whether that decision is right we do not express any opinion. It is binding on respondent, since he did not appeal therefrom.
Decisions to which we are referred made respecting situations where the employer had not elected to come under the Workmen’s Compensation Act, such as Koepp v. Nat. E. & s. Co. 151 Wis. 302, 139 N. W. 179, and Kosidowski v. Milwaukee, 152 Wis. 223, 139 N. W. 187, have no application. In the circumstances of those cases, certain common-law defenses were taken away, while in the particular situation they were preserved.
The trial court, as we have seen, clearly erred in failing to •appreciate appellant’s true status. Therefore, the verdict of the jury counts for little. The whole situation was well known to respondent. He knew as much about it as appellant did. At the particular time the foreman was not even present. The crew proceeded to do the work as they did when they could easily have obtained another man had they desired one. They knew what was required as well as any one. Certainly 760 pounds for seven men to handle was not very heavy work. On the contrary, it may well be that there were too many men; that they were in each other’s way, resulting in
By the Court. — So ordered.