Thomas v. Industrial Commission

10 N.W.2d 206, 243 Wis. 231, 147 A.L.R. 103, 1943 Wisc. LEXIS 103

• Court: Wisconsin Supreme Court
• Decided: April 15, 1943
• Status: Published

Opinions

Wickhem, J.

Plaintiffs are the unestranged parents of Kenneth Thomas. They operated as partners a laundry business under the name of Eagle Steam Laundry. In’this business, during 1939 and 1940, their seventeen-year-old son, Kenneth, worked as a truck driver and was paid on the same basis as other employees. He lived at home, paid nothing for board or lodging. No child-labor permit had been obtained and his work was after school hours except during the summer period when he worked steadily. On January 10, 1941, while delivering laundry on his regular route Kenneth Thomas was killed. The Eagle Steam Laundry was under the Workmen’s Compensation Act and covered by a policy issued by Hardware Mutual Casualty Company. After the death on February 4, 1941, insured procured from applicants a stipulation that' employment and liability existed and agreeing to submit the claim to the commission and pay $28 to apply on the liability. The examiner found that decedent was an employee of Eagle Steam Laundry but that because the applicants were also the employers of decedent they were barred from compensation by reason of the decision in Independence Indemnity Co. v. Industrial Comm. 209 Wis. 109, 244 N. W. 566. On review by the commission the finding that decedent was also an employee was reversed, it being found that the decedent, although he worked regularly and was paid such sums as he earned and was listed for social security and income tax purposes, was not an emancipated minor, because he spent the money for clothes, paid no board at home, had no labor permit, and his parents were legally entitled to his earnings. For this reason and on the basis of the holding in the Independence Case, supra, the application was dismissed and a refund of the death payment into the state treasury was ordered. Upon appeal, the trial court did not determine whether or not employment existed, but held that recovery was barred by the Independence Case.

Appellants’ contention is that the rule of the Independence Case, supra, is wrong on principle and should be repudiated by this court. The respondent, while resisting this contention, asserts that even if the Independence Case were to be abandoned, the finding of the commission that Kenneth was not an employee must be sustained as founded on credible evidence. For reasons that will hereafter be set forth, we consider that the findings of the commission are not sustained by the evidence. Therefore, the first question is whether the Independence Case was wrongly decided and whether under all the circumstances it should now be repudiated. In the Independence Case, Minnie Boss, a widow, was engaged in operating a farm. She carried workmen’s compensation insurance. Her son, Christian, was employed by her at a monthly wage to work on the farm. He came to his death by reason of injuries sustained in the course of his employment. He was unmarried and his mother-employer applied to the Industrial Commission for such relief as she might be entitled to in the premises. The defense of the insurance carrier was that the applicant and employer were one and the same person and that applicant as employer could not be liable to herself or herself recover any compensation or damages or benefit by reason of the statutory liability imposed upon her by the Workmen’s Compensation Act for the injury and death of the deceased employee; that the policy covered only the liability of the employer and that no liability existed in this case.

The court there stated the questions to be: (1) May the Industrial Commission make an award directly against an insurance carrier without finding liability of the employer? (2) May the Industrial Commission award compensation to a surviving unestranged parent against herself as employer? The court held that the fundamental purpose of the act is to provide compensation for one who is accidentally injured while in the employ of another who at that time is subject to the act, and that the insurance provisions were for the purpose of guaranteeing payment of compensation to the injured employee in accordance with the terms of the act. It was further held that the compensation act clearly reveals that liability of the employer to the employee or dependent is the primary liability, although proceedings against either the employer or the insurance carrier may be had; that it is the liability of the employer that must be assumed by the insurance carrier, and that no liability exists on the part of the carrier in the absence of liability on the part of employer. Reliance was had upon sec. 102.28, Stats., which provided as follows:

“(2) An employer liable under this act to pay compensation shall insure payment of such compensation in some company authorized to insure such liability in this state. . . .”

“(4) If it appears by the complaint or by the affidavit of any person in behalf of the state that the employer’s liability continues uninsured there shall forthwith be served on the employer an order to show cause,” etc.

Sec. 102.30 (1), Stats., provided:

“Nothing in sections 102.03 to 102.34, inclusive, shall affect the organization of any mutual or other insurance company, or any existing contract for insurance of employers’ liability, nor the right of the employer to' insure in mutual or-other companies, against such liability, or against the liability for the compensation provided for by sections 102.03 to 102.34, inclusive. . . .”

Sec. ,102.31 (1), Stats., provided:

“. . . Such contract shall be construed to'grant full coverage of all liability of the assured under and according to the provisions of sections 102.03 to 102.34, inclusive, notwithstanding any agreement of the parties to the contrary unless the industrial commission has theretofore by written order specifically consented to the issuance of a contract of insurance on a part of such liability. ...”

Under these sections it was held, (1) that applicant sustained no liability to herself, and (2) that in the absence of such liability there was no liability upon the Insurance Company. This is criticized by appellant as applying rules of contract law to a statutory liability. On this branch of the case we think the Independence Case, supra, was rightly decided.

It is of little consequence what labels reminiscent of common-law liability are attached to the statutory obligations. By no process can the conclusion be escaped that the insurance company, even though it may be sued directly, though its con tract is not principally one of indemnity or surety in the common-law sense, with attending rights to reimbursement, subrogation, and exoneration, may set up as a defense anything tending to destroy or mitigate the liability of an employer. In every assignment, this court considers such defenses as that there was no relation of employer and employee, that the injury did not arise out of and in the course of employee’s employment, and any number of other defenses which go to destroy liability on the part of the employer. It may be proper to term the insurance liability a primary one in the sense that the Insurance Company may be sued directly, and it is undoubtedly proper to regard it as principally for the purpose of assuring payment to the injured employee or his dependents, rather than that of indemnifying the employer. But whatever it be called, the conclusion cannot be avoided that establishment of a liability of the employer under the act to the employee or dependent is a condition precedent to any liability by the Insurance Company. In this respect, the situation is analogous to insurance policies covering liability for the operation of motor vehicles. There is nothing in this inconsistent with Maryland Casualty Co. v. Industrial Comm. 198 Wis. 202, 211, 221 N. W. 747, 223 N. W. 444. That case simply holds and we hold here that the purpose of requiring insurance is not to indemnify the employer but to assure the injured employee or his dependent that the employer’s liability will be discharged. In fact, in that case the opinion states that the Insurance Company “assumes the employer’s obligation to’pay compensation. The measure of its liability under its policy and the statute is the employer’s liability to the injured employee.” As was pointed out in the Independence Case, supra, the Maryland Casualty Co. Case, supra, assumes that there must exist a liability of the employer and that it is this liability that the insurer must carry. It is suggested that the case of Hagenah v. Lumbermen’s Mut. Casualty Co. 241 Wis. 226, 5 N. W. (2d) 760, has in effect reversed the Independence Case, but the Hagenah Case also assumes that the insurance is against the liability of an employer. In Curt v. Industrial Comm. 226 Wis. 16, 275 N. W. 447, this court sustained an award of compensation to a minor child injured while working for his father, and this court considered it essential to determine whether the relationship of employer and employee existed between parent and child. The entire opinion is devoted to a consideration of that question for the obvious purpose of determining whether the parent-employer sustained any liability to the applicant. The child was held to be an employee and had a right to a recovery against the insurer because there was a liability to it by the parent. We see nothing whatever to the contention that the Independence Case is based on contract law rather than the statutory provisions of the Workmen’s Compensation Act. Reference is made to those sections of the statute relied on by the court in the Independence Case and heretofore set out as statutory proof that the statute contemplates a liability on the part of the employer to the employee who is injured, or in case of his death, to his dependents.

What has heretofore been said does not, of course, decide this case. The real question is whether it was correctly decided in the Independence Case, supra, thát there was no liability under the compensation act. The argument that there is a liability is grounded on the. fact that sec. 102.03, Stats., labeled “Conditions of liability,” contains no exclusion clause to cover such a case as we have before us and that it is an exclusive description of the conditions of liability. It is further argued that sec. 102.51 complétely describes “dependents” without reference to-their possible identity with the employers. Thus, it is asserted that it is the duty of this court simply to check these several subsections of sec. 102.03 to ascertain the conditions of liability and then in case of situations where the dependency section is in force to literally apply the dependency section. This is, of course, an arguable position, but it appears to us to overlook two things: (1) Sec. 102.03 is stated in terms of limitation, that is to say, liability exists only where the listed conditions concur, and (2) there is no purported definition of the term “liability” as used in sub. (1) of the section. This is especially important since the subsections do not purport completely to define liability. Liability, under the common law and under every statutory definition that we can recall, has always contemplated different persons on the right and duty side of the relationship. This rule is so well established that it ought to require the clearest sort of language in a statute to come to a conclusion that liability was contemplated when as here the same person occupies the right and duty position and the duty is owed by the person who claims the right. This was the view of the court in the Independence Case, and while the point is, of course, debatable, we cannot say that this conclusion, which is in accord with the universal conception of liability, is a clearly mistaken one. The operation of the dependency section is clearly dependent upon the establishment of a liability and is of no moment once it is determined that no liability exists. This court consistently applied these principles in the Curt Case, supra, compensation being granted there because the injured minor was in being and a liability could run" to him. There has been some effort to escape this by arguing that the partnership should be treated as an entity, but it is well established that the Uniform Partnership Act is founded upon the aggregate, and not on the entity theory so far as all substantive rights, liabilities, and duties are concerned. Whatever recognition is given to the entity theory in the partnership act is solely for procedural or conveyancing purposes and this comment is- applicable to references in the Workmen’s Compensation Act to partners.

Apart "from the foregoing, which convinces us that the Independence Case, supra, was rightly decided, it may be added that by no argument that we can think of can it be held to be demonstrably wrong. The decision was handed down in 1932 and the construction of the statute adopted has by the well-established doctrine of this court become a part of the statute. In Eau Claire Nat. Bank v. Benson, 106 Wis. 624, 627, 82 N. W. 604, the court said:

“Courts are not responsible for the law. It is their province to declare and apply it and to construe statutes and constitutions in accordance with the will of the lawmaking power, where construction becomes necessary. When such construction has once been given to a law and finally established as a part thereof, it is as much a part of it as if embodied therein in plain and unmistakable language. State ex rel. Heiden v. Ryan, 99 Wis. 123. When that situation exists it is the province of the legislature alone to change the law. The court should not attempt it, whatever may be the notions of judges as to what the law ought to be.”

See also Milwaukee County v. City of Milwaukee, 210 Wis. 336, 341, 342, 246 N. W. 447; Morris v. Sampsell, 224 Wis. 560, 272 N. W. 53; Will of Kootz, 228 Wis. 306, 280 N. W. 672.

Since the Independence Case, supra, many sessions of the legislature have come and gone and the legislature has never amended the statute to change the rule of the Independence Case. This is significant. In Union F. H. S. Dist. v. Union F. H. S. Dist. 216 Wis. 102, 106, 256 N. W. 788, the court said;

“Since that time two legislatures have come and gone without amending the law; this they would in all probability have done if they had deemed the opinion of the attorney general unsound.” See also Will of Kootz, supra.

In addition to this, the Industrial Commission, to which is committed the enforcement of the Workmen’s Compensa.tion Act, has relied upon the interpretation established by the Independence Case, supra, and defends it upon this appeal.

The final question is whether it was correctly determined by the commission that the insurer sustained no liability for payment of $2,000 into the state treasury because Kenneth Thomas was not an employee. Sec. 102.49 (5), Stats. 1939, provides, so far as material:

“In each case of injury resulting in death, leaving no person wholly dependent for support, the employer or insurer shall pay into the state treasury such an amount, when added to the sums paid or to be paid on account of partial dependency, as shall equal the death benefit payable to a person wholly dependent, such payment to the state treasury in no event to exceed two thousand dollars.”

It is apparent that .this liability is not governed by the con-siclerations involved ill the Independence Case, supra, but depends upon whether the finding that Kenneth Thomas was not an employee is sustained by the evidence. In such a situation the statute requires that there be paid to the state treasury the difference between the death benefit payable to a person wholly dependent and such sums as have been paid or are payable on account of partial dependency, the total payment not to exceed $2,000. Once the relation of employer and employee is established and an injury has resulted in death with neither total nor partial dependencies, the maximum payment of $2,000 to the state treasury is specifically required by the statute. There is, of course, a liability by the employer and insurer to the state and the question in the Independence Case does not arise. The commission urges that there was sufficient evidence to sustain its finding that Kenneth Thomas was not an employee. We are of the view that this contention cannot be sustained. Sec. 102.07, Stats., so far as material, defines “employee” as follows:

“(4) Every person in the service of another under any contract of hire, express or implied, . . . including minors (who shall have the same power of contracting as adult em ployees), but not including farm laborers, domestic servants and any person whose employment is not in the course of a trade, business, profession or occupation of his employer.”

In our opinion there is no question upon the record that deceased was working regularly at the time of his death under a contract to pay him upon á commission basis for the delivery work done by him. He was hired and paid at the regular wage paid other employees for these services and the details of the work were under the control of the employer. It is true that he lived at home and was required to pay no board. We conclude, (1) that this did not impair his status, and (2) that the rule of the Curt Case, supra, applies. He was allowed to contract for wages and to keep his earnings. Under the express terms of sec. 102.07 (4), Stats., he was given the same power to contract as an adult, and under the decision in the Curt Case this included the power to contract with his parents for the purposes of the Workmen’s Compensation Act. We consider that sec. 102.49 (S), Stats. 1939, applies, and that the insurer must pay into the state treasury the sum o f $2,000.

By the Court. — Judgment modified as indicated in the opinion and as so modified is affirmed. No costs are to be taxed upon this appeal, appellant to pay the clerk’s fees.