Lutz v. Wilmanns Bros. Co.

• Decision Date: 13 November 1917
• Citation: 166 Wis. 210,164 N.W. 1002
• Parties: LUTZ v. WILMANNS BROS. CO.
• Court: Wisconsin Supreme Court

166 Wis. 210

164 N.W. 1002

LUTZ

v.WILMANNS BROS. CO.

Supreme Court of Wisconsin.

Nov. 13, 1917.

Appeal from Circuit Court, Milwaukee County; John J. Gregory, Judge.

Action by William Lutz, an infant, by Fred Lutz, his guardian ad litem, against the Wilmanns Bros. Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to dismiss the complaint.

This action was commenced in the circuit court for Milwaukee county June 18, 1914, by the respondent, a minor, 15 years of age, by his guardian ad litem, to recover damages from the appellant for injuries sustained October 24, 1913, while in the employ of the appellant under a child labor permit. The complaint alleges that the minor was hired under a permit to do work which he was authorized to do, but that he was, by the appellant, wrongfully put to work in operating and running an elevator, which employment was prohibited by law. The case was tried to the court and a jury. Motions for nonsuit and directed verdict were denied, and the following special verdict returned:

(1) Was the plaintiff, William Lutz, directed by the foreman, Wegehaupt, to use the elevator? Answer: Yes.

(2) Did the defendant permit or suffer the plaintiff, William Lutz, to run said elevator? Answer: Yes.

(3) What sum will reasonably compensate the plaintiff for the injuries he received? Answer: Four thousand dollars.

Judgment in favor of the plaintiff was rendered on the verdict, from which this appeal was taken.Austin Fehr & Gehrz, of Milwaukee, for appellant.

Houghton, Neelen & Houghton, of Milwaukee, for respondent.

KERWIN, J. (after stating the facts as above).

It is strenuously argued by counsel for appellant that there is not sufficient evidence to show that plaintiff was put to work at prohibited employment within the meaning of the prohibitory statute. We shall assume for the purpose of the case, that the evidence was sufficient.

Respondent denies that at the time of injury the plaintiff was working under a child labor permit, and further insists that the plaintiff was not under the Compensation Act. We are convinced upon careful examination of the evidence that a child labor permit was issued to plaintiff, which was in force at the time of the injury.

[1] The respondent contends that the plaintiff, not having been in the employ of defendant for 30 days before the injury, was not under the Compensation Act, and relies upon section 2394--8. The defendant was at the time of employment of plaintiff under the Compensation Act; hence the 30-day provision in subdivision 2 of section 2394--8 does not apply to the plaintiff here. Counsel seems to rely upon Wiesedeppe v. Zweifel et al., 165 Wis. 84, 160 N. W. 1038, and quotes from the opinion. It will be seen upon an examination of the statement of facts in that case that the employer at the time of the employment was not under the act; hence the 30-day provision applied. In the instant case the respondent at the time of the employment was under the Compensation Act. Green v. Appleton W. Mills, 162 Wis. 145, 155 N. W. 958.

The appellant on September 1, 1913, under subdivision 2 of section 2394--5, became subject to the provisions of the Workmen's Compensation Act. The respondent's contract of employment with the appellant was entered into and work commenced under it October 18, 1913; his labor permit issued by the Industrial Commission having been received by the appellant on that day. Plaintiff was injured October 24, 1913. He never gave to defendant or filed with the Industrial Commission any notice electing not to be subject to the provisions of the Compensation Act. Clearly under the established facts in this case the respondent was an employé within the meaning of subdivision 2, section 2394--7, Stats. which reads:

“Every person in the service of another under any contract of hire, express or implied, oral or written, including aliens, and also including minors who are legally permitted to work under the laws of the state (who, for the purposes of section 2394--8, shall be considered the same and have the power of contracting as adult employés). * * *”

The instant case is ruled by Foth v. Macomber & W. R. Co., 161 Wis. 549, 154 N. W. 369. The respondent in the instant case was a minor who was “legally permitted to work under the laws of the state” within the reasoning of the Foth Case.

Counsel for respondent relies upon Stetz v. Mayer B. & S. Co., 163 Wis. 151, 156 N. W. 971; but it will be seen that in that case the minor had no permit, therefore, in view of his age, was not legally permitted to work under the laws of the state. In the Stetz Case this...