Conveyors' Corp. of Am. v. Indus. Comm'n of Wis.

• Decision Date: 03 December 1929
• Citation: 228 N.W. 118,200 Wis. 512
• Parties: CONVEYORS' CORPORATION OF AMERICA ET AL. v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

200 Wis. 512

228 N.W. 118

CONVEYORS' CORPORATION OF AMERICA ET AL.

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.^a1

Supreme Court of Wisconsin.

Dec. 3, 1929.

Appeal from a judgment of the Circuit Court of Dane County; August C. Hoppmann, Circuit Judge.

Action by the Conveyors' Corporation of America and another against the Industrial Commission of Wisconsin and others to set aside an award under the Workmen's Compensation Act to Josephine Galko for the death of her husband. From a judgment of the circuit court affirming an award by the Industrial Commission, the plaintiffs appeal. Affirmed.--[By Editorial Staff.]

Action begun February 7, 1928; judgment entered March 9, 1929. Plaintiffs appeal.

The appeal is from a judgment of the Dane county circuit court affirming an award by the Industrial Commission of compensation to Josephine Galko under the Workmen's Compensation Act for the death of her husband, who died as a result of exposure to poisonous gases while attempting to remove the body of an employee of the plaintiff corporation from the tank of an ash conveyor in process of installation by the plaintiff corporation for the defendant corporation. The corporations are hereinafter called, respectively, the “Conveyors' Corporation” and the “Body Corporation.” At the time of the accident the Conveyors' Corporation was making some changes required before the conveyor would be accepted by the Body Corporation. The conveyor was being installed at and in connection with the Body Corporation's power plant. Collins, an employee of the Conveyors' Corporation, was a workman engaged in making the changes. Becker, also an employee of the Conveyors' Corporation, had come from Chicago with detailed plans to supervise the changes. On reaching the plant he hunted up Collins and found him lying in the bottom of the tank overcome by gas. He did not know whether Collins was beyond resuscitation. He could not remove him alone and went for help to the nearest place where help could be procured, which was the boiler room of the Body Corporation's power plant. He called to the head fireman that Collins was in the bottom of the tank. The head fireman repeated the word to his helper, Galko, and went to the engine room and repeated it to a workman, Bethe, who was there employed. Becker and Galko had started for the tank to rescue Collins and Bethe followed them. The three went down a ladder to the bottom of the tank but could not get Collins up the ladder. Becker then went for a rope and more help. A rope was let down, and Galko and Bethe fastened it around Collins and were both overcome while he was being lifted up. Bethe recovered, but Galko died as a result of his exposure to the gas in the tank.Quarles, Spence & Quarles, of Milwaukee (George C. Bliss, of Chicago, Ill., and Arthur Wickham, of Milwaukee, of counsel), for appellants.

John W. Reynolds, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., and Fawsett & Shea, of Milwaukee, for respondents.

FOWLER, J.

The Workmen's Compensation Act, hereinafter referred to as the “act,” defines an “employer” as one who has any person in service under any contract of hire, express or implied, oral or written, and an “employee” as one who is in the service of another under any such contract but not one whose employment is not in the usual course of the business of his employer. Sections 102.04(2); 102.07(4), Wis. Stats. Section 102.03(2) provides for compensation of an employee where at the time of the accident he is performing service growing out of and incidental to his employment.

The contentions of the Conveyors' Corporation fall under two general heads: (1) That it is not liable because Galko was not its employee, but the employee of the Body Corporation, if at the time of accident he was an employee at all within the meaning of the act; and (2) that if Galko was its employee, it is not liable because he was not injured in the usual course of the corporation's business.

[1][2] Under the first head, the Conveyors' Corporation attempts, inferentially at least, to shift liability for compensation, if any exists, to the Body Corporation. That Galko was an employee of the Body Corporation does not subject that corporation to liability, unless at the time of his accident he was performing a service for that corporation incidental to his employment. The workman must be performing a service for the company employing him when injured, and the service must be incidental to his duties to that company. Collins was not an employee of the Body Corporation. The Body Corporation owed no duty to him. It was under no duty as an employer to rescue him from his position of danger. Galko in assisting to rescue Collins was performing no service for the Body Corporation, and his act towards rescue was in no sense incidental to his duties under his contract of employment with that corporation. Upon no theory could the Body Corporation be held liable.

[3][4] Under this head the claim is also made that Galko was not an employee at all because no contract of hire existed for performing the work of rescue. There was no express contract of hire for that work and no agreement to pay a wage therefor. But there was a contract of employment by implication, and that contract was with the Conveyors' Corporation. This arises from the following considerations: It is the duty of an employer to rescue his employee from a position of imminent danger in an emergency. Dragovich v. Iroquois Iron Co., 269 Ill. 478, 109 N. E. 999;...