Deep Rock Oil Co. of Wis. v. DeRouin

• Decision Date: 06 December 1927
• Citation: 216 N.W. 505,194 Wis. 369
• Parties: DEEP ROCK OIL CO. OF WISCONSIN v. DEROUIN.
• Court: Wisconsin Supreme Court

194 Wis. 369

216 N.W. 505

DEEP ROCK OIL CO. OF WISCONSIN

v.DEROUIN.

Supreme Court of Wisconsin.

Dec. 6, 1927.

Appeal from a Judgment of the Circuit Court for Dane County; A. G. Zimmerman, Circuit Judge. Affirmed.

This action was brought by the Deep Rock Oil Company of Wisconsin to reverse an award of the Industrial Commission made against it in favor of Etta Derouin, widow of Arthur Derouin, who was killed while performing services for the Brown County Deep Rock Oil Company. The circuit court vacated and set aside the award, from which judgment Etta Derouin appealed.Kittell, Jaseph, Young & Everson, of Green Bay, for appellant.

Olin & Butler, of Madison (Cummins, Roemer & Flynn, of Chicago, Ill., and H. L. Butler, of Madison, of counsel), for respondent.

John W. Reynolds, Atty. Gen., and Michael J. Dunn, Asst. Atty. Gen., for Industrial Commission.

OWEN, J.

The award was against the Brown County Deep Rock Oil Company and the Deep Rock Oil Company of Wisconsin. The applicant's decedent was in the employ of the Brown County Deep Rock Oil Company at the time he sustained injuries resulting in his death. The Brown County Deep Rock Oil Company did not carry insurance. The Industrial Commission found that the Brown County Deep Rock Oil Company was a contractor under Deep Rock Oil Company of Wisconsin, and rendered the award against Deep Rock Oil Company of Wisconsin pursuant to the provisions of section 102.06, Statutes, which provides:

“An employer subject to the provisions of sections 102.03 to 102.34, inclusive, shall be liable for compensation to an employé of a contractor or subcontractor under him who is not subject to sections 102.03 to 102.34, inclusive, or who has not complied with the conditions of subsection (2) of section 102.28 in any case where such employer would have been liable for compensation if such employé had been working directly for such employer.”

Subsection 2 of section 102.28 requires all employers under the act to carry compensation insurance. As the Brown County Deep Rock Oil Company did not carry compensation insurance, the Deep Rock Oil Company of Wisconsin is subject to the award, if in fact the Brown County Deep Rock Oil Company was a contractor under it. The Deep Rock Oil Company of Wisconsin contends that the Brown County Deep Rock Oil Company was not a contractor under it, and hence it was not subject to the award under the statutory provisions referred to.

The Deep Rock Oil Company of Wisconsin was and is engaged in marketing the refined products of the Shaffer Oil & Refining Company, known and designated as “Deep Rock products.” For such purpose it owned certain plants, buildings, and service stations in Brown county, Wis. On the 16th day of March, 1925, it entered into certain leases and agreements with the Brown County Deep Rock Oil Company, and whether the Brown County Deep Rock Oil Company was a contractor under Deep Rock Oil Company of Wisconsin depends upon the effect of such leases and agreements.

[1] The first of such agreements to which we shall refer is called the “bulk station agreement.” That agreement recites that the Deep Rock Oil Company of Wisconsin is desirous of marketing its products in Brown county through a local organization, and that it is contemplated and desired that said local organization shall continue and enlarge the business as far as possible developed in that territory. To this end, the Wisconsin Company “hereby leases and rents to the second party (Brown County Company) the plants, buildings, and stations of said Deep Rock Oil Company of Wisconsin and Home Oil Company, so to do, which said plants, buildings, and stations are now located in the cities of Green Bay and De Pere, Brown county, Wisconsin, on property owned by Deep Rock Oil Company of Wisconsin.” It is then provided that “this lease is made subject to all the terms, provisions, and conditions set forth in Exhibit C hereto attached and made a part hereof.” The lessee agrees to faithfully comply with all the provisions of Exhibit C, and to indemnify and hold harmless the lessor against any injury to, or death of, any persons or damages to property resulting from any failure to comply with all such provisions. Exhibit C was not introduced in evidence and the import of that provision of the lease does not appear. The lease is to continue for the term of one year. The rental is fixed at $43.50 per annum plus one-fourth of one cent on each and every gallon of petroleum products sold by said first party to said second party at said station. Lessor agrees to replace all portions of physical property when they become worn out. Lessee agrees to deliver up the property at the expiration of the lease in as good condition as when the same was entered upon by the said lessee, “loss by fire and inevitable accident and ordinary wear and tear excepted.” Lessor agrees to furnish lessee its refined products at such stations in such quantities as may be ordered by the lessee, and the lessee agrees to handle lessor's products exclusively at such stations. It is agreed that goods so ordered shall be delivered at a price f. o. b. the refinery of Shaffer Oil & Refining Company, located at Cushing, Okl., with shipping charges allowed to the destination on a railroad, to which the same may be consigned. It is agreed that the lessor will insure the property so leased but that the lessee will upon demand repay to the lessor the amount of the premiums. Lessee is required to maintain the property in the best condition and repair possible, but it shall not be liable for extraordinary repairs necessitated by acts of God or other causes beyond its control. The lessee agrees to pay all taxes, licenses, and inspection fees assessed or levied against the property. In case of the failure on the part of either ...