Independence Indem. Co. v. Boss

• Decision Date: 11 October 1932
• Citation: 209 Wis. 109,244 N.W. 566
• Parties: INDEPENDENCE INDEMNITY CO. v. BOSS et al.
• Court: Wisconsin Supreme Court

209 Wis. 109

244 N.W. 566

INDEPENDENCE INDEMNITY CO.

v.BOSS et al.^*

Supreme Court of Wisconsin.

Oct. 11, 1932.

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

Action by the Independence Indemnity Company to review an award of the Industrial Commission in favor of Minnie Boss. From the judgment, plaintiff appeals.--[By Editorial Staff.]

Reversed, with directions.

This action was commenced on the 13th day of June, 1931, to review an order and award of the Industrial Commission, made on the 15th day of May, 1931. From a judgment entered on the 16th day of December, 1931, affirming the order and award of the Industrial Commission, the plaintiff appealed.Drought & Drought, of Milwaukee, for appellant.

John W. Reynolds, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondents.

NELSON, J.

The facts in this case are not in dispute. They present a rather unique situation which gives rise to a question which heretofore has not been presented to this court or, so far as we can discover, to any court.

Minnie Boss, a widow, engaged in operating a farm, carried workmen's compensation insurance. Her son, Christian Boss, a single man, was employed by her at a monthly wage of about $55 and room and board. On January 21, 1931, he was struck on the head by a falling limb which resulted in his death on the same day. It was stipulated between the parties that, at the time of the fatal accident, Minnie Boss was subject to the Workmen's Compensation Act; that Christian Boss was in her employ; that he was fatally injured while in the course of his employment; and that there was no estrangement between Minnie Boss, the surviving parent, and Christian Boss, her son, at the time of his injury and death. At the time of the accident her compensation risk was carried by the plaintiff herein.

On or about the 23d day of March, 1931, Minnie Boss made application to the Industrial Commission in which she named herself as employer, the plaintiff as insurance carrier, and in which she prayed that the respondent be required to answer the charges therein, and that an order or award be made by the commission granting such relief as the applicant may be entitled to in the premises. Both the company and Minnie Boss made separate answers as respondents in which the facts stated in the application were admitted. The plaintiff, however, set forth the following defense to the claim made against it and Minnie Boss, the insured employer:

“1. That the applicant and respondent employer is one and the same person, and as such cannot be liable to herself or herself recover any compensation or damages, nor herself in anywise benefit by reason of the statutory liability imposed upon her by the Workmen's Compensation Act for the injury and death of this deceased employee.

2. That the policy of the respondent, Independence Indemnity Company, issued to the respondent employer insured solely and only the liability of said employer, and that no liability exists on its part in the absence of enforceable liability on the part of applicant and employer herself.”

The commission, after hearing, found the facts as stated, and concluded “that the defense raised by the insurance carrier does not apply under the provisions of the compensation law, and in view of the circumstances existing at the time of the injury and death of the deceased, we find that the insurance carrier is liable to the applicant for death benefit in the sum of $1200, and to reimburse her to the extent of $200 for funeral expenses.” No conclusion of law as to the liability of Minnie Boss, as employer, was made by the commission. The commission, however, made its award, and ordered the plaintiff to pay to Minnie Boss for death benefit the sum of $1,200 and $200 funeral benefit. No question is raised as to the funeral benefit, or as to plaintiff's liability to pay for any services performed by physicians or nurses.

The sole questions for determination may be stated as follows: (1) May the Industrial Commission make an award directly against an insurance carrier without finding liability of the employer? (2) May the Industrial Commission award compensation to a surviving unestranged parent against herself as employer?

The plaintiff contends that the finding of the commission as to its liability is a mere conclusion of law, and therefore not binding upon this court, as has been repeatedly held; that, in the absence of a finding of liability of the employer, no award against the insurance carrier can be sustained; that Minnie Boss, as dependent, cannot recover from herself as employer, and that, in the absence of liability on the part of the employer, there can be no liability on the part of the insurance carrier.

The commission, on the other hand, contends that it makes no difference that the dependent is also the employer, that the insurance carrier is liable to the dependent, even though the dependent was the employer, and that, in any event, the insurance carrier should be held liable on grounds of estoppel because it accepted premiums calculated on the basis of wages paid to the employees of Minnie Boss, including those paid to her son Christian.

A careful consideration of the Workmen's Compensation Act necessitates the conclusion that the fundamental purpose of the act is to provide compensation for one who is accidentally injured while in the employ of another who, at the time, is subject to the act, Columbia Casualty Company v. Industrial Commission, 200 Wis. 8, 10, 227 N. W. 292, and that the insurance provisions of the act were enacted for the purpose of guaranteeing payment of compensation to the injured employee in accordance with the terms of the act. Maryland Casualty Co. v. Industrial Commission, 198 Wis. 202, 209, 221 N. W. 747, 223 N. W. 444.

[1] A careful study of the act, chapter 102, Wis. Stats. 1929, clearly reveals that the liability of the employer to the employee, or dependent, is the primary liability, although...