Standard Oil Co. v. Industrial Commission

1 N.W.2d 874 | Wis. | 1941

This is an appeal from a judgment of the circuit court for Dane county dated February 5, 1941, setting aside the interlocutory order of the Industrial Commission dated August 24, 1940, ordering the respondent, Standard Oil Company, to pay to the respondent, Harry A. Tabbert, certain sums as compensation for injuries received while in the employ of the Standard Oil Company, and remanding the record to the Industrial Commission for further proceedings. This is the second time this case has been before this court. (See StandardOil Co. v. Industrial Comm. 234 Wis. 498,291 N.W. 826.)

A brief summary of the proceedings will be helpful. On July 16, 1938, the defendant, Lumbermens Mutual Casualty Company, instituted a proceeding before the Industrial Commission for the purpose of having determined the question of whether or not Lumbermens Mutual Casualty Company or Standard Oil Company (Indiana) was liable for compensation payments to one Harry A. Tabbert who sustained an injury on April 1, 1938. On November 2, 1938, a hearing was held on the petition of the Lumbermens Mutual Casualty Company. On December 12, 1938, the Industrial Commission examiner filed his findings and conclusions and entered an order directing Standard Oil Company to pay compensation benefits to Tabbert. On December 29, 1938, the Industrial Commission acting as a body affirmed the findings of its examiner. Standard Oil Company on January 14, 1939, instituted an appeal to the circuit court for Dane county. That court on September 14, 1939, filed its decision directing the commission to find whether or not Tabbert was an employee of Standard Oil Company or an employee of one Krueger. The Industrial Commission and Lumbermens Mutual Casualty Company took an appeal to this court. On May 7, 1940, this court filed its decision affirming the judgment of the circuit court and remanded the cause for further proceedings in accordance with the opinion. When the case was returned to the commission the commission acting as a body filed findings of fact and an accompanying memorandum on the 24th day of August, 1940, wherein Standard Oil Company was again directed by the commission to pay compensation benefits to Tabbert. Standard Oil Company on September 19, 1940, commenced this action. The circuit court filed its decision on January 29, 1941. It held that the commission had not followed the decision of this court on the former appeal and sent the case back to the commission with directions to find that Tabbert was an employee of Krueger and not of the Standard Oil Company. The circuit court entered its judgment to that effect on February 5, 1941. On February 20, 1941, the present appeal was taken. The judgment of the lower court vacated and set aside the findings and order of the Industrial Commission dated August 24, 1940. It further directed the commission to find that Krueger was the employer of Tabbert and to enter an award in his favor, and directed Lumbermens Mutual Casualty Company to pay compensation. The trial court has correctly interpreted our former opinion in this case. Apparently the Industrial Commission concluded that because the case was remanded to it for a finding as to the Krueger-Tabbert relationship the court regarded that as a disputed fact. There is no basis for any such interpretation of our former opinion. The facts then and now are not in dispute. Whether certain facts create a legal relationship of employer and employee is a question of law. On the former appeal, page 502, the court said:

"Reference to the Workmen's Compensation Act (ch. 102, Stats.) shows that an employer is a person usually employing three or more persons, or who has entered into a contract of insurance for compensation or against liability therefor, and that an employee is a person in the service of another under a contract of hire, including helpers. Under these tests Krueger,as held below, is Tabbert's employer and hence liable forthe compensation."

If this court had the power to make findings of fact when the facts are undisputed it would have done so on the former appeal, and would have found the facts in accordance with the opinion that Krueger was the employer of Tabbert and liable for compensation. Following the rule in Frank Martin-LaskinCo. v. Industrial Comm. 180 Wis. 334, 193 N.W. 70, the cause was remanded for further proceedings in accordance with the opinion. The court having held that Krueger was Tabbert's employer and hence liable for the compensation, it was the duty of the commission to so find the fact. The last sentence of the former opinion reads:

"When he [Krueger] is found to be the employer, the award must follow.

It will serve no useful purpose to make reference to the points discussed in the briefs of counsel on this appeal.

By the Court. — Judgment affirmed.