Brenner v. Heruben

• Decision Date: 13 February 1920
• Parties: BRENNER v. HERUBEN ET AL.
• Court: Wisconsin Supreme Court

170 Wis. 565

176 N.W. 228

BRENNER

v.HERUBEN ET AL.

Supreme Court of Wisconsin.

Feb. 10, 1920.

Dissenting Opinion Feb. 13, 1920.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Proceeding by Peter Heruben under the Workmen's Compensation Act to obtain compensation for injuries, opposed by George Brenner, the employer. There was an award of compensation, which was affirmed by the circuit court, and the employer appeals. Affirmed.

Eschweiler and Rosenberry, JJ., dissenting.

Action to review an award of the Industrial Commission in favor of the defendant Peter Heruben, who was a minor under 17 years of age, and was injured while in the employ of the plaintiff without having a permit, as required by section 1728a, Stats. 1917. The commission awarded Heruben $925.64 damages under the schedule of the Compensation Act and the further sum of $1,851.28 increased compensation under the provisions of subsection 6 of section 2394--9, which provides that--

“Compensation and death benefits, as provided in sec. 2394-3 to 2394-31, inclusive, shall * * * be treble the amount otherwise recoverable: (a) If the injured employé be a minor of permit age and at the time of the accident is employed, required, suffered or permitted to work without a written permit issued pursuant to sec. 1728a.”

This latter provision was added by chapter 624 Laws of 1917, which was published July 13, 1917, and took effect September 1, 1917. Chapter 674 of the Laws of 1917, published July 17, 1917, and taking effect September 1, 1917, raised the permit age from 14 to 16 years to 14 to 17. Heruben was employed in August, 1917, and was then several months past 16 years of age. So as the law then stood he needed no permit at the time he was employed, but did September 1st and thereafter. He was injured September 7th, while grinding meat for hamburger steak. Plaintiff conducted a restaurant in Superior, and Heruben was employed therein as a general helper. The commission found that Heruben was performing work incidental to his employment at the time he was hurt, and made the award as above stated. The circuit court affirmed the award, and from a judgment entered accordingly the plaintiff appealed.Grace & Fridley, of Superior, for appellant.

John J. Blaine, Atty. Gen., and Winfield W. Gilman, Asst. Atty. Gen., for respondent Industrial Commission.

Dietrich & Dietrich, of Superior, for respondent Heruben.

Otjen & Otjen, of Milwaukee, amici curiæ.

VINJE, J. (after stating the facts as above).

[1][2][3] The commission found that Heruben, who was a general helper in a restaurant, was performing work incidental to his employment while engaged in grinding meat for hamburger steak. Plaintiff attacks this finding, and urges that Heruben, whose chief employment consisted in serving tea, coffee, and milk, was not engaged in work incidental to his employment at the time he was hurt. This contention must be attributed to a lack of restaurant experience, rather than to a want of knowledge of the conclusive character of findings of fact made by the commission when based upon any competent evidence or upon the common experience of mankind. The patrons of many restaurants would unhesitatingly say that the preparation of hamburger steak is pre-eminently the most striking example of genuine restaurant service that can be imagined. But, be that as it may, we certainly cannot hold that the finding of the commission has no basis in fact, since it is a matter of common knowledge that hamburger steak is a customary product of the ordinary restaurant. The commission, therefore, was justified in finding that Heruben performed service incidental to, if not inherent in, his employment when he was hurt, and the finding must stand as a verity in the case.

A much more serious question is raised by plaintiff's claim that the amendment of 1917, providing for treble compensation when a minor is employed without a permit, is unconstitutional.

[4] It is suggested by counsel for the Industrial Commission that since the Workmen's Compensation Act is elective plaintiff cannot question the constitutionality of a law he has elected to come under and from which he can withdraw. Without deciding the question whether an employer can question the constitutionality of any provision of the Compensation Act contained therein when he elects to come under it, or subsequently added thereto, and from which he has had an opportunity to withdraw as provided by section 2394--5, Stats. 1917, we are of the opinion that plaintiff here can question the constitutionality of this amendment because he has had no option to withdraw from it since it was enacted. Under section 2394--5 he must file with the commission notice of withdrawal for any year beginning July 1st at least 30 days prior thereto. On June 1st this amendment was not in existence. It did not become law till July 13, 1917, when it was published, and it became affective September 1, 1917. When it became a law it was too late for plaintiff to withdraw for the year beginning July 1, 1917, and he was compelled to accept this law for that year at least. He had no election as to whether he should remain in under it for the year specified. Not having any election as to the amendment so far as this accident is concerned, the elective feature of the law cannot be invoked to deprive him of the right to question the constitutionality of the amendment.

[5] The argument against its constitutionality runs, in substance like this: Treble compensation is a penalty, and its exaction is in fact the enforcement of a penal or criminalstatute, namely, that of the child labor law, which is not in any way germane to the subject of compensation for industrial accidents. The right to a jury trial for the enforcement of a penalty has never been waived by employers in electing to come in under the Workmen's Compensation Act.

It is further argued that section 2394--9, Stats. 1919, provides full compensation for injuries sustained by employés, and therefore the increased compensation is purely a punishment for violating section 1728a; that this is further evidenced by the fact that under section 2394--9(7) the employer is made primarily liable for the increased compensation and the insurer only secondarily liable, and that since there is no relation between the injury sustained and the additional compensation the classification of minors based upon their having or not having a permit is void because it is not based upon any real distinctions germane to the purpose of the law of which it is a part, citing Kiley v. Chicago, M. & St. P. R. Co., 142 Wis. 154, 125 N. W. 464, and Borgnis v. Falk Co., 147 Wis. 327, 133 N. W. 209, 37 L. R. A. (N. S.) 489.

The argument is not without force, and were we to justify the amendment upon common-law principles alone, without reference to the wide departure therefrom made by the Workmen's Compensation Act, the task would not be an easy one. But the question is, not whether it is a justifiable common-law scheme, but whether it is fairly germane to, and within the limits of the general scheme of, the Workmen's Compensation Act. If it is, then it is constitutional, for an employer in coming under the act waived his common-law remedies and agreed to be bound by the remedies afforded by the act and all lawful amendments thereto. Anderson v. Miller Scrap Iron Co., 169 Wis. 106, 170 N. W. 275, 171 N. W. 935.

Under the common-law scheme the employer must breach his duty to his employé in failing to exercise ordinary care and because of such delict on his part the employé is entitled to full compensation for injuries resulting proximately therefrom.

Under the scheme of the Workmen's Compensation Act there need be no delict on the part of the employer, and full compensation is not given to the employé for the damage he has sustained, but only partial compensation. Thus for total disability of a person under 32 years of age only 65 per cent. of his average weekly earnings for not exceeding 15 years is provided. Section 2394--9. It will thus be seen that under the scheme of the Compensation Act the loss sustained is borne by the employer, the employé, and the public who use the product of the industry in which the employé is engaged at the time of his injury. It is quite evident from the schedule in section 2394--9 that the employé usually bears the major part of the damage, even where full statutory compensation is given him. Since he gets compensation irrespective of any negligence on the employer's part, and since it comes to him speedily and without much expense, it is perhaps as desirable as the full compensation given under the common-law scheme, though the latter averages perhaps three times the statutory compensation.

But though the Workmen's Compensation Act is not bottomed upon negligence, it nevertheless recognizes negligence, faults, or delicts in certain cases, and gives increased or diminished compensation accordingly. Thus where an injury is caused by the failure of the employer to comply with any statute of the state or any lawful order of the Industrial Commission, compensation and death benefits are increased 15 per cent. Section 2394--9 (5) (h). Compensation is reduced 15 per cent. in each of the following cases: (a) Where the injury is caused by the willful failure of the employé to use safety devices provided by the employer; (b) where the injury results from the employé's willful failure to obey any reasonable rule adopted by the employer for the safety of the employé; or (c) where injury results from intoxication of the employé. Section 2394--9 (5) (i) (j) and (k) respectively. The reason for this is obvious. It is to secure as far as possible compliance with the laws, rules, and regulations adopted to safeguard the life and limb of employés. The state has a direct interest in so doing, and may enact reasonable laws to effectuate such purpose. It has enacted a child labor law for the purpose of...