Heal v. Adams

• Decision Date: 09 October 1928
• Citation: 197 Wis. 95,221 N.W. 389
• Parties: HEAL ET AL. v. ADAMS ET AL.
• Court: Wisconsin Supreme Court

197 Wis. 95

221 N.W. 389

HEAL ET AL.

v.ADAMS ET AL.^a1

Supreme Court of Wisconsin.

Oct. 9, 1928.

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

Action by W. E. Heal, employer, and the Employer's Mutual Liability Insurance Company, insurance carrier, against Lewis Adams and another. From a judgment setting aside an order of the Industrial Commission awarding compensation to defendant Adams, plaintiffs appeal. Reversed, with directions.--[By Editorial Staff.]

Action begun December 17, 1926. Judgment entered December 17, 1927. This is an appeal from a judgment setting aside the order of the Industrial Commission awarding compensation to the defendant Lewis Adams.John W. Reynolds, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for appellants.

Quarles, Spence & Quarles, of Milwaukee (Arthur B. Doe, of Milwaukee, of counsel), for respondents.

CROWNHART, J.

The defendant Lewis Adams was employed by the plaintiff W. E. Heal to drive a tractor. Heal was engaged in road construction in the summer, and in logging operations in the winter. On the day of the accident, Adams was directed by his employer to drive a tractor to plow a lot of less than a half acre for one Long, who operated a pool hall. Long was going to plant the lot to tobacco.

The plaintiff Heal had taken out a compensation insurance policy with the plaintiff Employers' Mutual Liability Insurance Company. This brought Heal under the Compensation Act, pursuant to subdivision (3), § 102.05, Stats. 1925, which reads as follows:

“Any employer who shall enter into a contract for the insurance of the compensation provided for in sections 102.03 to 102.35, inclusive, or against liability therefor, shall be deemed thereby to have elected to accept the provisions of sections 102.03 to 102.35, and such election shall include farm laborers and domestic servants if such intent is clearly shown by the terms of the policy. Such election shall remain in force until withdrawn in the manner provided in subsection (1) of this section.”

Whether or not the policy was broad enough to cover farm laborers under that section is immaterial. Heal was under compensation, and he employed Adams to drive a tractor, and not as a farm laborer. Under subdivision (1), § 102.31, Stats. 1925, it is provided:

“Every contract for the insurance of the compensation herein provided for, or against liability therefor, shall be deemed to be made subject to the provisions of section 102.03 to 102.34, inclusive, and provisions thereof inconsistent with sections 102.03 to 102.34, inclusive, shall be void. Such contract shall be construed to grant full coverage of all liability of the assured under and according to the provisions of sections 102.03 to 102.34, inclusive, notwithstanding any agreement of the parties to the contrary unless the Industrial Commission has theretofore by written...