Miller v. Industrial Commission

179 Wis. 192 | Wis. | 1922

Vinje, C. J.

The trial court in reaching the conclusion that the principal contractor was not liable said:

“Sec. 2394 — 6 of the Statutes imposes a liability on two classes of persons only — those who are employers and those who are contractors or subcontractors ‘for whom the employee was working at the time of the accident.’ It is the employer and not an intermediate contractor .that is made liable in those cases in which the employer would have been liable if the injured employee had been working directly for the employer. It is the employer alone who can recover if compensation is paid to one who was employed by a contractor or subcontractor not subject to the act. The section contains no provision imposing any liability upon a contractor who is not' performing the particular service for the employer in which the employee is engaged at the time of injury.”

Sec. 2394 — 6, Stats. 1921, provides:

“An employer subject to the provisions of sections 2394 — 3 to'2394 — 31, inclusive, shall be liable for compensation to an employee of a contractor or subcontractor under him who is not subject to sections 2394 — 3 to 2394 — 31, inclusive/or who has not complied with the conditions of subsection 2 of section 2394 — 24 in any case where such employer would have been liable for compensation if such employee had been working directly for such employer. The contractor or subcontractor, shall also be liable for such compensation, but the employee shall not recover compensation for the same injury from more than one party. The employer who shall become liable for and pay such compensation may recover the same from such contractor or. subcontractor for whom the employee was working at the time of the accident.”

Were the provisions of this section the only guide in determining the correctness of the result reached by the trial court there would be considerable basis for saying that the terms “employer,” “contractor,” or “subcontractor” used therein do not mean the same. But sub. (2), sec. 2394 — 4, declares that the following, among others, shall constitute employers within the meaning of the compensation act:

“(2) Every person, firm, and private corporation (including any public service corporation), who has any person in service under any contract of hire, express or implied, oral or written, and who, at or prior to the time of the accident to the employee for which compensation under sections 2394- — 3 to 2394 — 31, inclusive, may be claimed, shall, in the manner, provided in section 2394 — 5, have elected to become subject to the provisions of sections 2394 — 3 to 2394 — 31, inclusive, and who shall not, prior to such accident, have effected a withdrawal of such election, in the manner provided in subsection 1 of section 2394 — 5.”

It will thus be seen that the term “employer” is broad enough to include a contractor or subcontractor and others also. Therefore when the statute says an employer shall be liable the liability attaches to- a contractor, for he is an employer within the meaning of the act. So where the same section gives “the employer” a remedy over against the one actually liable, that includes a remedy in favor of a contractor or subcontractor if he be the employer.

The construction is consonant with the language used in the statute and conserves to the employee the indemnity intended to be given him by the legislature by making contractors liable for injuries received by employees of a subcontractor who is not under the act. They will be careful to protect themselves and will also see to it that their subcontractors are protected against such losses.

The award of $148 for medical expense was proper under the provisions of sub. (1), sec. 2394—9. See, also, Pierce v. Industrial Comm., decided herewith (ante, p. 189, 190 N. W. 80).

By the Court. — Judgment reversed, and cause remanded with directions to enter judgment affirming the order of the Industrial Commission. The appellant is entitled to costs on this appeal.