205 Wis. 339 | Wis. | 1931
The following opinion was filed April 7, 1931:
The award for compensation to be paid by plaintiffs, and which they seek to have vacated, was made to the widow of George Koefler, who was fatally injured on June 1, 1929. On that day and for about a year prior thereto, Koefler was in the employment of the plaintiff Metzger, who was engaged in business as a painting contractor, and in that business employed from three to fourteen men. Koefler’s employment was to do painting and work incidental thereto in the usual course of Metzger’s painting business. On June 1, 1929, Metzger directed his foreman, with the assistance of another of his employees, to haul some
It is true that, as appellants contend in their first assignr ment of error, there is no evidence “that Metzger ever became subject to the compensation act as to any business other than that of a painting contractor.” It is also true that — as we understand appellants intend to contend in their second assignment of error — the work which Koefler was actually engaged in at the time of the accident was not such work as is usually performed in the regular course of the business of a painting contractor. However, under the-compensation act, as applicable to the circumstances under which Koefler was working for Metzger at the time of the accident, it was not necessary, in order to render Metzger liable for compensation, that Metzger was subject to the compensation act as to any other business than that of a painting contractor ; or that the work which Koefler was temporarily performing for Metzger was such work as was usually performed in the regular course.of such a business. Under the existing circumstances, Koefler, at the time of his injury, was entitled to compensation under the coverage afforded by secs. 102.03 to 102.34, Stats., as Metzger’s “employee,” as that term is defined in sec. 102.07 (4), Stats. 1927, unless he was excluded from that status because of the provision in that statutory definition that the term “employee” does not include “any person whose employment is not in the usual course of .the trade, business, profession, or oc
The facts in the case of Charles Ploetz & Co. v. Industrial Comm. 194 Wis. 603, 217 N. W. 325, differ from the facts in the case at bar in the crucial respect that in the Ploetz Case there existed no employment of the injured employee in the usual course of the trade, business, profession, or occupation of the employer. Although the employer had been conducting a business, there was no existing employment of the injured person in the usual course of that business. ITe sustained his injuries in the absence of any such existing employment, and while under hire solely to perform
The casual or fugitive employment of three or more persons for a few days in some temporary undertaking which is wholly foreign to the usual trade, business, profession, or occupation of an employer, and as to which he is not otherwise subject to the compensation act, presents a situation which is materially different in point of fact and legal consequences from the situation in the case at bar, in which Metzger, because he was an employer within .the act, and Koefler, because of his -existing employment in the usual course of Metzger’s painting business, were both subject to the provisions of the act at the time of injury.
On the other hand, in this case the right to compensation and the payment thereof by the insurer as well as the employer are n,ot dependent upon the extension, by virtue of sec. 102.31 (1), Stats., of the coverage to an employee whose employment was in the usual course of some other business of the employer than the business which was specified in his contract for compensation insurance. That was necessary in Northwestern Cas. & S. Co. v. Industrial Comm. 197
By the Court, — Judgment affirmed.
A motion for a rehearing was denied, with $25 costs, on June 22, 1931.