Culbertson v. Kieckhefer Container Co.

• Decision Date: 04 December 1928
• Citation: 197 Wis. 349,222 N.W. 249
• Parties: CULBERTSON v. KIECKHEFER CONTAINER CO.
• Court: Wisconsin Supreme Court

197 Wis. 349

222 N.W. 249

CULBERTSON

v.KIECKHEFER CONTAINER CO.

Supreme Court of Wisconsin.

Dec. 4, 1928.

Appeal from a judgment of the Circuit Court for Milwaukee County; William R. Foley, Judge. Affirmed.

Common-law action by Andrew J. Culbertson against the Kieckhefer Container Company, begun February 15, 1926, to recover for personal injuries. From a judgment for the plaintiff, entered March 27, 1928, the defendant appealed.

The jury found that plaintiff was injured by the negligence of an employee of the defendant company, while the plaintiff was employed by an independent contractor, who was installing a sprinkler system in defendant's plant.Hayes, Darnieder & Hayes, of Milwaukee (W. A. Hayes, of Milwaukee, of counsel), for appellant.

Rubin, Zabel & Rouiller, of Milwaukee (W. B. Rubin, of Milwaukee, of counsel), for respondent.

STEVENS, J.

[1][2] 1. The Workmen's Compensation Act gives the plaintiff no right to compensation from the defendant. The right to claim compensation under this act is confined to those cases where the relationship of employer and employee exists. That relationship is created only in those cases where the one claiming to be an employee is in the service of another under a contract, either express or implied. Unless there is such relationship, the injured person is left to the remedies given him by the common law before the enactment of the Workmen's Compensation Act.

The plaintiff was not an employee of the defendant company. There was no contract, either express or implied, which required him to serve the defendant company. He was employed by an independent contractor, that had exclusive control over the men whose duty it was to complete the job specified in the contract. The defendant had no control over the plaintiff, and no right to demand service of him.

The fact that section 102.06 of the Statutes might, under certain contingencies, place defendant in the position of insurer of any compensation that might be due from plaintiff's employer, does not make plaintiff an employee of the defendant, for the reason that this provision of the statute does not create the relationship of employer and employee, but does create a relationship that is analogous to that of an insurer. Where the relationship of the insurer exists, liability is based upon an independent contract between the employer and his contractor, and not upon any contract of service, either express or implied.

A consideration of all the statutes that bear on the question of the relationship of the parties leads to the conclusion that the plaintiff had no right to claim compensation of the defendant, and that his only means of securing redress of the defendants was by this common-law action for damages. Cermak v. Milwaukee Air Pump Co., 192 Wis. 44, 211 N. W. 354.

[3] The statutes which we are here considering do not impose a double liability on the defendant. In any event the defendant's liability is limited to the amount of damages that may be assessed in a common-law action. If the defendant had been compelled to pay an award as an insurer of compensation under the provisions of section 102.06 of the Statutes, the amount of such award would of necessity have been deducted from the amount assessed by the jury in this action. The case is distinguished from Mahowald v. Thompson-Sterrett Co., 134 Minn. 113, 158 N. W. 913, 159 N. W. 565, and McNaught v. Hines, 300 Ill. 167, 133 N. E. 53, by the fact that the statutes in both of those jurisdictions expressly limit the amount of recovery in an action based on the negligence of a third party to the aggregate amount of compensation which might be awarded under the Workmen's Compensation Act.

[4][5][6] 2. The evidence sustains the finding of the jury that the plaintiff was not guilty of negligence which proximately contributed to produce the injury of which he complains. His injury was caused by the falling of a roll of paper into the passageway along which plaintiff was walking. It was the duty of the plaintiff to exercise ordinary care to avoid injury to himself. It was the custom of the workers to give warning whenever the crane was moving rolls of paper over the passageway. The plaintiff knew of that custom, and had a right to rely upon such warning being given, in the absence of something to put him upon his guard. The warning was in fact given in this instance. But it was too late to avoid injury to the plaintiff. Under the proof in this case the court cannot disturb the finding of the jury upon this issue.

[7] 3. Appellant contends that damages in the sum of $16,150 assessed by the jury are excessive. Plaintiff sustained serious injuries. His skull and one of the bones of his foot were fractured. There was a double fracture of the pelvis. There were also numerous physical injuries of lesser severity. He was unable to do any work for three or four months after the injury. These injuries caused a serious impairment of both sight and hearing. As a result of these injuries he is subject to dizzy spells and headaches. He was formerly an agile man, who could climb ladders, work upon scaffolds, and lift heavy weights. Since the accident he is weak, and unable to do any of the...