162 Wis. 57 | Wis. | 1916
The inquiries are, Was the deceased,, Voeck, at the time in question, assisting the village marshal in the execution of his duties in suppressing a disturbance of the peace and aiding the marshal and the deputy sheriff, Weingarten, in arresting Jones for violating the law of the state? and Was he, if so engaged, employed as a policeman of the village within the provisions of the Workmen’s Compensation Act ?
The trial court correctly and clearly states the situation of affairs at the time Jones created the trouble at Justice Phillip’s home which caused the village marshal to call on Voeck to assist him and Weingarten at this place. The circuit court concluded that, “While Jones was technically under arrest by the deputy sheriff, it is apparent that he was not under the control of the deputy and that the deputy sheriff did not have either the courage or the ability to perform his duty as a peace officer. After his arrest Jones was both disturbing the peace and violating the law and the deputy sheriff did not prevent farther continuance of such conduct. Under such circumstances it was the duty of the marshal to take such action as would prevent further continuance of this lawless conduct on the part of Jones.” The
The marshal’s acts constituted in the law a command to Voeek to assist in the execution of the criminal law under the provisions of sec. 884, Stats. 1913, and refusal to comply therewith would have subjected him to the penalties of sec. 4488, Stats. 1913. By command of the village marshal Voeek was required to perform duties of the same kind as those of the marshal, namely, police duties to suppress a breach of the peace and to enforce the criminal law. The transaction in fact conferred on Voeclc the powers and duties of a police officer for the purposes and the exigencies of the occasion. Erom this-it logically follows that Voeek was engaged with the marshal in performing police duties in the village at the marshal’s command. The duties and powers thus imposed on him under authority of the village marshal, by force of the statutes, constituted an appointment of Voeek to perform police service for the village. State ex rel. Brown v. Appleby, 139 Wis. 195, 120 N. W. 861; McCumber v. Waukesha Co. 91 Wis. 442, 65 N. W. 51; 3 Cyc. 877; 2 Ruling Case Law, p. 491, § 52. The result is that Voeek acquired the status of a police officer of the village and was engaged in the execution of the criminal law at the time of his death.
The Compensation Act (sec. 2394 — 7, Stats.) provides that the term “employee” as used in the act shall be construed to mean: “(1) Every person in the service of the state, or of any county, city, town, village, or school district therein
The service which he was performing did not entitle him to any specified fee or remuneration and hence it furnishes no wage basis upon which to compute compensation. The •circuit court held that the Commission erred in basing their award on decedent’s average wage as a plumber, which was his employment up to that time. We consider that the court properly held that decedent’s employment as a plumber is not the correct basis of computation under sec. 2394 — 10, Stats. 1913, which provides that where the specified methods for ascertaining the average annual earnings cannot reasonably and fairly be applied, then the average annual earnings for basis of compensation shall be fixed, in the light of decedent’s previous earnings, at the sum received by other •employees of the same or most similar class engaged in the ■same or similar employment in the same or a neighboring locality. The decedent not having been employed nor earning a salary as policeman during the year preceding his •death, the award must be based on the earnings of one doing policeman’s service in his or the neighboring locality as pro
By the Court.- — The judgment appealed from is affirmed. No costs are allowed to either party.
