Interstate Power Co. v. Indus. Comm'n of Wis.

• Decision Date: 10 February 1931
• Citation: 234 N.W. 889,203 Wis. 466
• Parties: INTERSTATE POWER CO. ET AL. v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

203 Wis. 466

234 N.W. 889

INTERSTATE POWER CO. ET AL.

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

Feb. 10, 1931.

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

Suit by the Interstate Power Company, employer, and the Fidelity & Casualty Company of New York, insurer to set aside an award of compensation for the death of Vernon Oehler, employee, in favor of Ferdinand Oehler. From a judgment correcting an award of the Industrial Commission and requiring the payment to the State Treasurer of the State of Wisconsin the sum of $1,000, the employer and insurer appeal.--[By Editorial Staff.]

Affirmed.

FRITZ, J., dissenting.

On October 25, 1929, the plaintiffs appealed to the circuit court from an award of the Industrial Commission requiring the payment to the state treasurer of the state of Wisconsin of the sum of $1,600. From a judgment entered March 16, 1930, correcting the award to $1,000, the plaintiffs appeal.

All the facts were stipulated and in brief are as follows: In April, 1924, Vernon Oehler, aged twenty years, lived with his parents, Ferdinand and Emma Oehler, at Decorah, Iowa, which place had been the residence and home of the parents and son for some years before that time, and continued to be such residence and home up to and including the date of his death. He was never married, and at the time of his death left his parents as sole survivors and partially dependent on him for support. The Interstate Power Company is a Wisconsin corporation, was licensed to do business in the state of Iowa before April, 1924, transacted business under such license in that state, and maintained its principal offices in McGregor, Iowa. The plaintiff the Fidelity & Casualty Company of New York insured the liability for compensation of the power company, under the Iowa laws. In April, 1924, the power company hired Vernon Oehler for work in Iowa. He was employed in the vicinity of Decorah and Lansing, Iowa, from April, 1924, to February, 1925, and worked exclusively in Iowa to some time in February, 1925. At this last-mentioned date, he was sent into Wisconsin for temporary work there. From February 25 to April 10, 1925, he boarded at Lancaster, Wis., but left all his belongings, other than those necessary for his immediate needs, with his parents at Decorah, Iowa, which continued to be the place of his residence. While working in Wisconsin he continued to be subject to orders from Iowa and was paid through the Iowa office of the power company, just as he had been paid while he was working in that state. On April 10, 1925, he was accidentally killed by electrocution at Lancaster, Wis., while in the performance of work for his employer and during the course of the employment. His partially dependent parents thereupon, on January 30, 1926, entered into a settlement agreement with the plaintiffs herein, providing in effect for the payment of three hundred weeks of compensation on a basis of 40 per cent. dependency, or a total sum of $1,765.20, plus a medical bill of $10. This memorandum of settlement was approved by the Iowa Industrial Commission February 10, 1926. No appeal or action to review has ever been had or taken therefrom, and it has the force and effect of a judgment in the state of Iowa. The parents applied to the Iowa Industrial Commission March 4, 1926, for a lump-sum payment of the amount provided in the settlement agreement. This application was approved March 22, 1926; May 24, 1928, the amount provided for in the lump sum application having been paid to the parents, they executed a receipt for such sum as the final payment due them under chapter 70, Code of Iowa.

The statute upon which the award of the Wisconsin Industrial Commission, as corrected by the judgment of the circuit court, was based is section 102.09 (4m) (f), Statutes of 1923, which reads as follows:

“In each case of injury resulting in death, leaving no person wholly dependent for support, the employer or insurer shall pay into the state treasury such an amount, when added to the sums paid or to be paid on account of partial dependency, as shall equal four times the deceased employee's average annual earnings, such payment to the state treasury in no event to exceed one thousand dollars. * * *”

The original award of the Wisconsin Industrial Commission was the result of the erroneous application of this section, as amended by chapter 517, Laws of 1927, to provide a maximum of $1,600 instead of $1,000.McGovern, Curtis, Devos & Reiss, of Milwaukee, for appellants.

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

WICKHEM, J.

It is the contention of the appellant that the contract between Oehler and the Interstate Power Company was governed exclusivelyby the Compensation Act of Iowa, where the contract of employment was made. The case presents substantially the converse of the situations heretofore considered in Anderson v. Miller Scrap Iron Co., 169 Wis. 106, 170 N. W. 275, 171 N. W. 935;Zurich G. A. & L. Ins. Co. v. Industrial Comm., 193 Wis. 32, 213 N. W. 630;Wandersee v. Industrial Comm., 198 Wis. 345, 223 N. W. 837; and Val Blatz Brewing Co. v. Gerard (Wis.) 230 N. W. 622, 625. In all of these cases this court considered the jurisdiction of the commission to enter an award in situations where the injury occurred outside the state of Wisconsin. A review of these cases is essential to an understanding of the problem presented here.

In Anderson v. Miller Scrap Iron Co., supra, the defendant was a Wisconsin corporation, having its principal place of business in Green Bay. The injured person was a resident of Wisconsin and an employee of the defendant company. The business of the company was carried on almost entirely within the state of Wisconsin. Nearly all of the injured person's services had been rendered in this state. The accident occurred in Michigan. It was held that the plaintiff's contention that since the injury had occurred within the state of Michigan, the rights of the parties must be determined in accordance with the laws of Michigan, and that the Wisconsin Workmen's Compensation Act could not affect the liabilities of the defendant company because it could not have any extraterritorial effect, was invalid. It was held that the liability of the employer under the act was not tortious, nor strictly contractual in the sense that it should be treated as a covenant. It was held that the act enters into and becomes a part of every contract to the extent that the law of the land is a part of every contract. It was stated that every contract is to be enforced and interpreted in accordance with the law of the place where it is made, and that the rights and liabilities of the parties thereto are to be determined in accordance with that law. The court held that principles which are applicable to actions ex delicto should therefore not apply to claims arising under the workmen's compensation act.

In Zurich G. A. & L. Ins. Co. v. Industrial Comm., supra, the employer was a Wisconsin corporation. In January, 1925, it commenced the construction of a bridge in Texas. It was expected that the Texas job would be completed in about four months. The deceased was a resident of Wisconsin, the president of the company, but was held to be an employee for the purpose of this construction work, which he supervised. He was killed in Texas. The court held that the Wisconsin act applied, and stated that this holding depended on the fact that his employment was pursuant to a Wisconsin contract.

In Wandersee v. Industrial Comm., 198 Wis. 345, 223 N. W. 837, 838, the employer was a resident of Chippewa Falls, and was under the Workmen's Compensation Act. The employee was a resident of Minnesota. In November, 1926, the employee was hired by the employer to buy hides in Minnesota and South Dakota. The contract was made in Wisconsin. He covered his territory with an automobile furnished by the employer. In 1927, while driving in Minnesota, in the course of his employment, one of his feet was frozen. The question presented was whether the Wisconsin Workmen's Compensation Act applied to services rendered in another state, pursuant to a contract made in this state, no service having been rendered in this state under such contract. The court denied compensation on the ground that the employee had performed no services in Wisconsin.

In Val Blatz Brewing Co. v. Gerard, supra, the Val Blatz Brewing Company, doing business in Milwaukee, entered into a contract in Wisconsin with the deceased husband of Alma Gerard, to sell its products in Missouri and Arkansas. The deceased was killed in an automobile accident at Fort Smith, Ark., having gone there to call on the trade for his employer. It was held that the deceased came under the provisions of the Wisconsin Compensation Act, provided his residence in Wisconsin be established. It was held that where residents of Wisconsin enter into a contract of employment in Wisconsin, a constructive status of employer and employee is created in Wisconsin, and that the Wisconsin act applies, no matter where the injury occurs, so long as this status continues. The court distinguished the Wandersee Case in the following language:

“In Wandersee v. Industrial Comm., 198 Wis. 345, 223 N. W. 837, the employee was denied compensation because he was a resident of Minnesota, who was not subject to the laws of Wisconsin and whose service was to be performed outside of the state.”

[1][2] From the foregoing cases it may be concluded that where the employer and employee are residents of Wisconsin, and the contract is made in Wisconsin, the provisions of the Wisconsin act become a part of the contract of employment, and the employee is entitled to the benefits of the act no matter where he performs the services and no matter where his injury in the course of his employment is sustained. It may also be taken as established by...