183 Wis. 583 | Wis. | 1924
The following opinion was filed March 11, 1924:
The liability of the appellant is predicated upon the provisions of sec. 2394 — -6, Stats., which makes an employer, subject to the provisions of the compensation act, liable for compensation to an employee of a contractor or subcontractor, under him who is not sub j ect to the act. The contention is that Smith was an independent contractor of the Lange Canning Company at the time the injuries were sustained. ' If such relation existed at the time the injuries were sustained, the appellant is clearly liable under the provisions of the statute referred to. But that he was at any time a contractor of the Lange Canning Company is not clear, tie was conducting an independent business on premises owned by the Lange Canning Company which he occupied rent-free. His relation would seem to be more analogous to that of a tenant rather than a contractor of the Lange Canning Company. However, if Smith was a contractor of the Lange Canning Company, his contract was completed and their relations terminated prior to the time the injury was sustained. Pie had already served breakfast. That was the last act to be performed by him under the arrangements between him and the Lange Canning Company. He had already removed most of his belongings from the premises. If their relations had not then terminated, it is difficult to say when they did terminate. Even though the claimant continued ih his employ, she was not an employee of the Lange Canning Company, within the contemplation
It is claimed, however, that because the Lange Canning Company voluntarily paid the temporary award of $95.15 without appealing therefrom, the question of its liability is res adjudicata. Sec. 2394 — -19 provides for the review of an award (which is commonly called an appeal) in the following language:
“The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive ; and the order or award, either interlocutory or final, whether judgment has been rendered thereon or not, shall be subject to review only in the manner and upon the grounds following: Within twenty days from the date of the order or award, any party aggrieved thereby may commence, in the circuit court for Dane county, an action against the commission for the review of such order or award, in which action the adverse party shall also be made defendant.”
Here there were two awards. The first was for a relatively small amount. The Lange Canning Company might not have felt aggrieved'by this award, or it might have considered it cheaper, to pay the award than to bring the necessary proceeding to be relieved therefrom. It was confronted with a different business proposition, however, when the larger award was made. It was the larger and .not the
It is true that the award here under review is based on the same findings of fact, so far as the relation of the parties is concerned, that constituted the basis of the temporary award. But' it has never been held, so far as we are advised, that findings of fact constitute res ad judie ata. Neither are we prepared to say that the doctrine of res ad judicata is applicable to administrative findings or orders. But we have considered the question upon the theory upon which it was argued and have arrived at the conclusion that the statute expressly authorizes an action to review either the interlocutory or final award, and that the voluntary payment of one does not affect the right to- review the other, even though both be based on the same findings of fact. It follows that the award here under'review was erroneous, and should be vacated and set aside.
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment vacating the award of the Industrial Commission.
A motion for a rehearing was denied, without costs, on May 6, 1924.