Sempier v. Goemann, 165 Wis. 103

165 Wis. 103 | Wis. | 1917

Eschweiler, J.

Upon the respondent’s application to review the order of the court below in opening the default, we are satisfied that in so doing the court acted well within the field of judicial discretion and therefore respondent’s request must be denied.

On defendants’ appeal it is urged in substance that the record established as a matter of law that at the time of the injury plaintiff was employed by an independent contractor, James Cherf; that no actionable negligence was shown or found by the jury; and that the court improperly admitted evidence as to statements made by one Thompson, alleged to be defendants’ agent, at the time that the plaintiff was hired.

The plaintiff alleged and proved certain provisions of the workmen’s compensation act of Michigan, the state in which the accident occurred, and that defendants had not elected to be and therefore were not subject to its provisions as to compensation. The effect of that act is substantially ’the same as ours and prevents defendants from relying upon any defense based upon the negligence of the employee himself or of a fellow-employee, or upon the assumption of the risk incident to his employment or from failure of the employer to provide safe premises and suitable appliances. Defendants also offered in evidence certain decisions of the supreme court of Michigan to determine the question of whether or not James Cherf was such an independent contractor as to make him and not defendants liable for the injury to plaintiff. The following cases, viz.: McClure v. D. S. R. Co. 146 Mich. 457, 109 N. W. 847; McBride v. Jerry Madden S. Co. 173 Mich. 248, 138 N. W. 1077; Samuelson v. Cleveland I. M. Co. 49 Mich. 164, 13 N. W. 499, wbicb were so offered by defendants, and also De Forrest v. Wright, 2 Micb. 368; Riedel v. Moran, Fitzsimons Co. 103 Mich. 262, 61 N. W. 509; Burns v. Michigan P. Co. 152 Mich. 613, 116 N. W. 182; Rogers v. Parker, 159 Mich. 278, 123 N. W. 1109; Bacon v. Candler, 181 Mich. 372, 148 N. W. 194, disclose no substantial difference between tbe rule in that state and tbe rule here as to sncb relationship, as indicated in Madix v. Hochgreve R. Co. 154 Wis. 448, 452, 143 N. W. 189.

In tbe case at bar, while it is true that tbe uncontradicted evidence shows that there was an oral contract betw'een defendants and Cherf by wbicb be was to have charge of tbe work of piling tbe logs, board and pay tbe men while so doing, and was to be paid at sixty-five cents per thousand, wbicb fact is of considerable weight but not necessarily controlling, yet there was evidence tending to show that defendants did exercise some species of control over tbe men by shifting at least one of them from tbe piling crew to work that was admittedly under tbe personal direction of defendants. Tbe defendants procured liability insurance to cover all tbe men employed on tbe entire work, including those working under Cherf, although tbe proportionate share of such insurance expense appears to have been charged against Cherf by defendants, but after tbe accident here involved. Tbe admissions in tbe answer were also proper to be considered in this connection. There were, therefore, facts from which a jury might legitimately draw tbe inference they did, that Cherf was a servant of defendants under their control at all times and that tbe arrangement as to compensation was for convenience only, and that therefore be was not such an independent contractor as would relieve tbe defendants from liability under the Michigan authorities or those of this state.

Tbe Michigan court has repeatedly defined tbe duty of tbe master to tbe employee in regard to tools and appliances. It is said in Wachsmuth v. Shaw E. C. Co. 118 Mich. 275, 76 N. W. 497, as follows:

“It is now well settled tbe master owes to tbe servant tbe duty of using ordinary care and diligence in providing for bis use sound and safe materials, and sucb appliances as are reasonably calculated to insure bis safety, tie is also bound to examine and inspect these things from time to time, and use ordinary care and skill to discover and repair defects in them.”

Tbe same doctrine is found in Morton v. D., B. C. & A. R. Co. 81 Micb. 423, 46 N. W. 111, and McDonald v. M. C. R. Co. 132 Mich. 372, 93 N. W. 1041. We can see no difference between that declaration and tbe law of this state as shown in Yazdzewski v. Barker, 131 Wis. 494, 111 N. W. 689; Czapinski v. Thomas F. Co. 158 Wis. 635, 149 N. W. 477, and many other cases; and, tested by tbe rule common to both states, it was in this case for tbe jury to determine whether that duty of tbe master bad been breached.

On this question of proximate cause it is urged that there were a number of ways under tbe testimony by which tbe log may have become loose and caused tbe injury and that the jury must necessarily have indulged in mere speculation in making tbe finding that they did; but it must suffice to say that although tbe testimony is somewhat indefinite and meager as to what took place at tbe precise time of tbe injury, yet there is sufficient in tbe record to support tbe finding that it was that precise cause as indicated in tbe finding, and therefore not some other, that proximately caused tbe inj*ury, and we cannot now disturb that finding.

One Thompson, a straw boss for defendants, having charge of tbe skidding operation, hired plaintiff and six other men at De Pere, Wisconsin, to work in tbe woods. Thompson testifies that be was not employed or authorized by defendants to hire plaintiff or any of these men for them, but that be was asked to do so for one Burdeau, who bad a sawing contract under defendants. On bis return from De Pere with tbe seven men tbe plaintiff and one other were left to work for Oberf, wbo kept tbe first camp reached by them. One or more of tbe others went to work for defendants and several for Burdeau. Subsequently plaintiff did work directly for defendants. There seems also to have been more or less shifting of tbe men from camp to camp. Under tbe specific objection that Thompson’s authority bad not been shown, tbe court permitted tbe plaintiff and one other witness to testify that at tbe time Thompson hired plaintiff and tbe others at De Pere be told them that they were to work for defendants. Tbe objection was perhaps well taken, but in view of tbe situation at tbe close of tbe trial when tbe court and jury bad for consideration tbe entire circumstances, tbe acceptance and retention by defendants of some of tbe men hired by Thompson, tbe nature of bis employment, tbe admissions in defendants’ answer, their failure to testify to tbe contrary, and tbe insuring of all these men by defendants, we cannot say that tbe error was material or sufficient to reverse.

Tbe other objections to tbe admission of evidence are not of sufficient importance to require discussion.

By the Oourt. — The order allowing defendants to defend and tbe judgment are each affirmed.