216 Wis. 29 | Wis. | 1934
The following opinion was filed June 5, 1934:
On this appeal the village of West Milwaukee and the county of Milwaukee contend that neither of them
Upon Yunker’s death, an application was filed with the Industrial Commission for the payment of compensation by Milwaukee county and the village of West Milwaukee. An award was made against the latter, and it brought this action to have the award vacated. The circuit court entered judgment modifying the award by holding Milwaukee county liable for the award, in lieu of West Milwaukee. Whether either Milwaukee county or West Milwaukee is liable for compensation for Yunker’s death depends upon whether he was an employee of either of those'municipalities at the time he sustained injury, within the meaning and contemplation of the compensation act. The provisions of the statutes, which are involved in the consideration of that proposition,' are as follows:
“Sec. 102.03 (1) Liability under this chapter shall exist against an employer only where the following conditions concur: (a) Where the employee sustains an injury, (b)
“Sec. 102.07 ‘Employee’ as used in this chapter means: (1) Every person in the service of the state, or of any municipality therein under any appointment, or contract of hire, express or implied. ...”
The “made-work” which Yunker was doing when he was injured, was performed for the village of West Milwaukee, but he was not an “employee” of that village within the contemplation of sec. 102.07 (1), Stats., because he was not in its service “under any appointment, or contract of hire, express or implied,” as is necessary to constitute him an employee under sec. 102.07 (1), Stats. He had voluntarily entered upon and was performing that work, without any appointment or contract with the village. He was not
By the Court. — The judgment appealed from is reversed, and the cause remanded to the circuit court with directions to enter a judgment setting aside the award of the Industrial Commission and dismissing the proceedings both as to the plaintiff and as to the defendant, Milwaukee county.
A motion for a rehearing was denied, without costs, on September 11, 1934.