Harry Crow & Son, Inc. v. Industrial Commission

• Decision Date: 08 January 1963
• Citation: 18 Wis.2d 436,118 N.W.2d 841
• Parties: HARRY CROW AND SON, INC., a Wisconsin corp. et al., Appellants, v. INDUSTRIAL COMMISSION, Gordon Crow et al., Respondents.
• Court: Wisconsin Supreme Court

Page 841

118 N.W.2d 841

18 Wis.2d 436

HARRY CROW AND SON, INC., a Wisconsin corp. et al., Appellants, v. INDUSTRIAL COMMISSION, Gordon Crow et al., Respondents.

Supreme Court of Wisconsin.

Jan. 8, 1963.

Kluwin, Dunphy, Hankin & Hayes, Milwaukee, for appellants.

John W. Reynolds, Atty. Gen., Beatrice Lampert, Asst. Atty. Gen., Madison, for respondent Industrial Commission.

WILKIE, Justice.

The sole issue to be determined on this appeal is whether Norbert Crow was, as the Industrial Commission expressly found, an employee under sec. 102.07(4), Stats. ¹ , of Harry Crow and Son, Inc. at the time of the accident.

Although we have held that the ultimate determination of employer-employee relationship under the Wisconsin Workmen's Compensation Act is a question of law there are questions of fact for the commission where there is room for dispute either as to facts or as to the inferences to be drawn from the facts. ²

In the instant case the crucial questions on the issue of whether the deceased was an employee are questions of law, to wit: (1) whether an unemancipated minor can be an employee under sec. 102.07(4), Stats., and (2) whether the lack of a labor permit affects the status of the deceased as an employee under sec. 102.07(4), Stats. The record amply supports a determination that the corporation employer had the control of the details of the work done by the deceased. ³ The fact that there wasn't an agreed wage rate nor a definite term of employment does not mean there can be no employment relationship. ⁴ The service undertaken by the deceased was of benefit to the corporation and was not in violation of any instruction to the contrary. ⁵

Appellants contend that the deceased was a minor and unemancipated son of Gordon Crow, the vice-president and general manager of the ready-mix family corporation and that the son could not be an 'employee' under any provision of the Wisconsin Workmen's Compensation Act. They rely on Prelipp v. Prelipp (1931), 203 Wis. 488, 234 N.W. 730, which is wholly inapplicable since it treats of the question of emancipation of a minor under common law and not under the terms of sec. 102.07(4) of the act. It is immaterial under sec. 102.07(4), Stats., whether a minor is emancipated, since sec. 102.07(4), Stats., specifically provides that minors shall have the same power of contracting as adults. The pertinent question is not whether the minor son has been emancipated but whether there is an agreement of employment within the meaning of the act. ⁶

The trial court traced the history of sec. 102.07(4), Stats., and stated:

'Chap. 624, Laws of 1917, added to the definition of an employe the following underscored words: '* * * also including minors of permit age or over (who, for the purposes of section 2394-8, shall be considered the same and shall have the same power of contracting as adult employes), * * *' Chap. 453, Laws of 1929, further amended section 102.07(4) by striking the words 'of permit age or over', leaving minors with the same power to contract as adults. Curt v. Ind. Comm. (1937), 226 Wis. 16, 19, 275 N.W. 447.'

The second contention of appellants is that since the particular employment here was of a nature requiring a work permit for a minor, and since no permit was applied for or issued here then the employment of deceased would be illegal and hence Norbert could not be held to be an employee.

In Thomas v. Industrial Comm. (1943), 243 Wis. 231, 10 N.W.2d 206, 147 A.L.R. 103, a minor was held to be an employee even though he did not have a work permit.

That the lack of a work permit here does not destroy the deceased's status as an employee is further emphasized by the fact that sec. 102.60, Stats., specifically prescribes that the effect of illegal employment of a minor without a permit in permitted work may result in double benefits while working without a permit in prohibited work may result in triple benefits.

Appellants' last contention is that public policy requires a reversal. But workmen's compensation is wholly statutory and questions on what should be the public policy concerning it are determined by the legislature. ⁷ The public policy here has been expressed by the legislature under the provisions of sec. 102.07(4), Stats., which specifically contemplate that a child serving an industry should have the benefits of the act, and the provisions of sec. 102.51(7), Stats., which specifically provide for recovery by a parent where death comes in an industrial accident to his minor child whom he employs. It is the clearly expressed public policy of the Workmen's Compensation Act that if industry utilizes the services of minors, industry should shoulder the burden of compensation benefits in the event of their injury.

Judgment affirmed.

1 '102.07 Employe defined. (4) Every person in the service of another under any contract of hire, express or implied, all helpers and assistants of employes, whether paid by the employer or employe, if employed with the knowledge, actual or constructive, of the employer, including minors (who shall have the same power of contracting as adult employes), but not including (a) domestic servants, (b) any person whose employment is not in the course of a trade, business, profession or occupation of his employer, unless as to any of said classes, such employer has elected to include them. Item (b) shall not operate to exclude an employe whose employment is in the course of any trade, business, profession or occupation of his employer, however casual, unusual, desultory or isolated any such trade, business, profession or occupation may be.' (Emphasis ours.)

2 Gant v. Ind. Comm. (1953), 263 Wis....