225 Wis. 514 | Wis. | 1937
Lead Opinion
The following opinion was filed April 7, 1937 :
This action was brought to vacate an award of compensation by the Industrial Commission under the Workmen’s Compensation Act. A minor son of the applicants was working upon a county trunk road in Marathon
(1) It is stated in the former opinion of this court that if the work being done by the decedent when he was injured was repair work, such as the county highway commissioner or the highway committee of the county board might properly order without action of the county board, the county would be liable for compensation, irrespective of other matters. The present record shows that the work was entirely new construction, such as can only be authorized by the county board itself, as pointed out in the original opinion of the court. Recovery therefore depends on whether the facts existed at the time of the injury that are essential to fix liability-upon the county for work done by direction of the
One of the resolutions above referred to was adopted on April 19, 1934, five days before the decedent was injured, and reads as follows :
“Resolution — Re Drought Relief. Resolved, by the Marathon County Board of Supervisors that it is the sense of this board that the drought relief extended to various farmers be worked out in the various towns and villages where the recipient of such relief resides.” ■ • ■
The other resolution referred to was adopted on July 18, 1934, about seven weeks after the decedent was injured. It recited that the question of carrying insurance for the protection of workers on relief pay rolls had been discussed at various county board meetings without any conclusion being reached; that liability attached to the county under various drought-relief projects for injuries sustained by employees on such projects; and “Resolved”’ that the county would not take out indemnity insurance against liability for such injuries but would carry its own risk on all relief projects.
It was held in our former opinion that adoption of the drought-relief program and assumption of liability under the Workmen’s Compensation Act could only be effected by ap
By the Court. — The judgment of the circuit court is reversed, and the record is remanded with directions to enter judgment vacating the award.
Rehearing
A motion for a rehearing was granted, without costs, on May 25, 1937.
The following opinion was filed October 12, 1937:
(on rehearing). An opinion was filed herein (on April 7, 1937) and a mandate entered reversing the judgment of the circuit court and directing judgment vacat
It is said in that opinion that “The only facts disclosed by the present record that were not included in the former record that could have any possible bearing” on the decision there rendered were “two resolutions adopted by the county board.” The resolutions there referred to are those hereinafter set out, adopted on April 19 and July 18, 1934.
It is thus apparent that when the opinion of April 7th was filed herein the court did not have in mind a resolution of the county board hereinafter set out which was adopted on January 20, 1934. Whether the writer was at fault for this, or appellant’s counsel for not setting it out in the printed case, or the respondents’ counsel for not setting it out by supplemental case, or for not particularly or more particularly calling attention to it, is immaterial. Having been brought to our notice on the motion for rehearing, we should now give such effect to it toward supporting the award of the Industrial Commission as may reasonably be given. Giving it such effect, the court is of opinion that the mandate of the court previously entered herein should be vacated and one substituted affirming the judgment of the circuit court confirming the award.
The case was before the court in April, 1935. The opinion then filed is reported in 218 Wis. 275, 260 N. W. 641. The judgment of the circuit court confirming an award of the commission was then reversed, with directions to remand the record to the commission “for the taking of further evidence to the end that compensation may be awarded if any facts are disclosed that warrant it.” . .
The basis of the award as first made was that the county had adopted the drought-relief program referred to in the previous opinion, and had agreed to procure workmen’s compensation to protect persons working out drought-relief con
When the matter came before the commission on remand of the record pursuant to the judgment of the circuit court pursuant to the mandate of this court, the commission found that the deceased was engaged on construction as distinguished from maintenance work, and that, while there was no evidence in the record that the county board had directly and expressly directed that construction work be done on the road when the deceased was injured, it had adopted the road as a part of the county trunk system, and construction work had in fact been commenced on it in December, 1932, or January, 1933, and had been since carried on as if it had been so directed. The commission also found that the county board “intended to adopt the drought-relief program,” by adoption of three resolutions to which it refers in its findings, two of which were adopted before the de
The first was adopted on January 20, 1934, three months before the deceased was put to work by the highway commissioner. It recited that “Whereas” Marathon county was one of the counties “in the drought-relief area;” and “Whereas” the federal emergency relief administration had appropriated $186,636 to Marathon county to be distributed in the form of “feed purchase orders” to farmers who qualify for relief; and “Whereas” the committee of the county board on “salaries and fees” had been designated by the federal emergency relief administration as the “Federal Relief Committee” of the county, and had “manifold duties in carrying out the expressed wishes of the federal emergency relief administration;” and “Whereas” “the duties of this work would necessitate full-time employment, and no compensation has been provided from any source” for the payment of persons in such employment; and “Whereas” these duties were a part of the duties of the county agent’s office, and performance of them required two additional employees; it was “Resolved” that the county agent employ and certify two employees to perform such duties, and that they be paid $4 per.day by the county.
The second resolution above referred to was adopted on April 19th, a few days before the deceased was set to work. As introduced it reads :
“Resolution — Re Drought Relief. Resolved, by the Marathon County Board of Supervisors that it is the sense of this board that the drought relief extended to various farmers be worked out in the various towns and villages where the recipient of such relief resides.”
After being amended by insertion of the phrase “as far as practicable,” it was adopted on the day of its introduction.
The resolution of January 20th by its terms shows that the board was fully apprised of the nature of the drought-relief program. It authorizes the employment and payment from county funds of two employees to add to the force of the county agent’s office to do the work entailed upon the office by that program. It evidences that the county board knew of that program, that it was operating in the county, that the county was receiving benefits from it, and was hiring employees to- do the work entailed by the operation of that program. It shows that the board intended to accept the benefits consequent to the county upon acceptance of that program, and, in connection with the resolutions of April 19th and July 18th, compels the inferences of fact that the county board intended to and did accept the benefits of that program. The county board intended to adopt the drought-relief program, and understood that it had adopted
The contention of the respondents that the resolution of July 18th constituted a ratification of the acts of its highway committee and highway commissioner referred to in our 1935 opinion, is perhaps not well taken. Respondents’ contention is based chiefly on MacLeod v. Washburn, 178 Wis. 379, 190 N. W. 124. But, as pointed out in Shulse v. Mayville, 223 Wis. 624, 271 N. W. 643, in the MacLeod Case, while the act of the council therein involved was treated by the court as a ratification, it was really an acceptance of benefits. If strictly construed, the resolution of July 18th was not a ratification of the acts of the highway officials of the county under the rule of the Shulse Case, that where there is
The appellant strenuously contends, as heretofore, that the son of the applicants was not an employee of the county but of the federal emergency relief administration. That contention is ruled against it by our decision in Sauk County v. Industrial Comm., ante, p. 179, 273 N. W. 515. He was as plainly an employee of the county as was the deceased there involved.
By the Court. — The original mandate herein is vacated, and a mandate substituted affirming the judgment of the circuit court confirming the award.
A motion to modify the mandate was denied, without costs, on December 7, 1937.