212 Wis. 641 | Wis. | 1933
The commission found “that at the time of applicant’s injury he was employed by the Western Weighing & Inspection Bureau and sustained his injury while performing service growing out of and incidental to his employment by such employer.” The facts are not in dispute. The finding of the commission, though denominated a finding of fact, was a mere conclusion of law. Under the rule stated in Weyauwega v. Industrial Comm. 180 Wis. 168, 192 N. W. 452, and Tesch v. Industrial Comm. 200 Wis. 616, 229 N. W. 194, we are permitted examine the undisputed facts for the purpose of determining whether the commission’s conclusion is sound.
The plaintiff Bureau is an association whose members are various railroads. It was organized in 1887. It has charge
The commission found that Cronin was, at the time of his injury, in the employ of the plaintiff Bureau. Both the commission and the trial court were of the opinion that this case is ruled by Rhinelander Paper Co. v. Industrial Comm. 206 Wis. 215, 239 N. W. 412. That case dealt specifically with the question whether the applicant therein was the employee of the paper company, the general employer, or the American Engineering Company, asserted to be the employer of a loaned employee. The Industrial Commission found that the applicant who had been employed by the páper company for a number of years was, at the time of his injury, assisting an employee of the American Engineering Company “for a few minutes in connection with ascértaining the difficulty in starting an air motor.” This court held-that under the facts of that case the applicant was an employee of the paper company. Mr. Chief Justice RosenbeRRY, speaking for the court, said (p. 217) :
'“It is quite generally agreed that in order to transfer liability from the general employer to the one to whom the employee is loaned, there must be some consensual relationship between the loaned employee and the employer whose service he enters, sufficient to create a new employer-employee relationship. Where an employee enters the service of another at the command and pursuant to the direction of the master, no new relationship is created. While the employee may be subject to the direction of the temporary master, he is there in obedience to the command of his employer, and in doing what the new master directs him to do he is performing his duty to the employer who gave the order. Whether or not there is in a particular case such a change*645 of relationship is often a matter of great difficulty and as to which reasonable minds may come to different conclusions. In this case the employment was temporary. It is clear that the claimant was performing services in obedience to the direction of the master and that there was no consent on his part, express or implied, sufficient to make him the employee of the American Engineering Company.. Consent cannot be inferred merely from the fact that the employee obeyed the commands of his master in entering the services of another. It was held in the Spodick Case (203 Wis. 211, 232 N. W. 870) as well as in Seaman Body Corp. v. Industrial Comm. 204 Wis. 157, 233 N. W. 433, that there was such a consent.”-
The decision of the Rhinelander Paper Company Case was obviously grounded on the proposition that the work being done by the applicant for the Engineering Company was “temporary,” and that no consent, express or implied, sufficient to make him the employee of the Engineering Company, was shown.
The plaintiff contends that this case is ruled by Cayll v. Waukesha G. & E. Co. 172 Wis. 554, 179 N. W. 771, and Seaman Body Corp. v. Industrial Comm. 204 Wis. 157, 235 N. W. 433, in the latter of which cases it was said with reference to rules applicable to loaned employees :
“The vital questions in controversies of this kind are: (1) Did the employee actually br impliedly consent to work for a special employer? (2) Whose was the work he-was performing at the time of injury? (3) Whose was the right to control the details of the work being performed? (4) For whose benefit primarily was the work being done?”
The plaintiff contends that the undisputed facts bring the present case within the rules of the Seaman Body Corporation Case. If the facts of this case justified the conclusion that the applicant herein was a loaned employee, we should doubtless feel constrained to hold that this controversy is ruled by the law of that case. But we do not think that Cronin was a loaned employee.
“We deem the rule which seeks so far as possible to place the burden upon the particular industry" in which the employee is working at the time of his injury essentially just and fair. The Morley Company was in no sense responsible for the condition in the appellant’s place of business which resulted in injury to the applicant. The particular work be*647 ing performed by applicant at the time of his injury was that of the appellant and was not in any sense the work of the Morley Company and may not in reason be said tO' be incidental to any duties which he was, under his contract with the Morley Company, to perform for it.”
We think that that language is peculiarly applicable to the facts of this case. Cronin performed work for both the Bureau and the railroad for nearly eleven years. His employment was obviously not so temporary as to permit us to apply to the facts of this case the rule stated in the Rhine-lander Paper Company Case. He was injured while performing work for the railroad and that industry should bear the burden of his injuries. The fact that the railroad was not under the workmen’s compensation law at the time Cronin was injured does not justify us in holding the Bureau liable under the undisputed facts.
By the Court. — The judgment of the circuit court confirming the award of the Industrial Commission is reversed, with directions to enter judgment setting aside the award of the Industrial Commission.