Maus v. Bloss
| Decision Date | 02 February 1954 |
| Citation | 62 N.W.2d 708,265 Wis. 627 |
| Parties | MAUS, v. BLOSS. |
| Court | Wisconsin Supreme Court |
This is an action commenced on January 20, 1953 for the recovery of damages for the violation of sec. 101.06, Stats., the safeplace statute.
On the date of plaintiff's injury which occurred on June 25, 1952 he was an employee of the defendant, the operator of a mink farm. At the time in question the farm was being used principally for the raising of mink. Plaintiff's duties consisted of repairing coops and mink boxes, hanging wire fence, feeding and watering the mink and doing generally whatever the employer wanted done.
On the date in question plaintiff and defendant were installing a portable air conditioning unit in a window of defendant's home which was located above a workroom used in connection with the operation of the farm. It was necessary for plaintiff to go to the workroom for the purpose of cutting a strip of Masonite down to a narrow width upon a mechanical saw. A guard had been provided for the saw but it had not been installed or used for a number of years prior to the time of the accident. The guard was hung on a hook in a shed near the saw. The plaintiff had not been told of the existence or location of the guard which, as the defendant testified, had been detached because its removal made the saw more convenient to operate.
While cutting the Masonite plaintiff was pushing it forward against the saw blade. He was holding the strip of Masonite down with both hands. He testified that when his left hand got to within four inches of the blade something flew in his direction and in trying to avoid it the fingers of his left hand were cut by the blade.
The issues were submitted to the jury upon questions inquiring as to a violation of the safe-place statute. Defendant was found to have violated the provisions of the statute and plaintiff was found to have been guilty of contributory negligence with respect to the position in which he placed his hands while operating the saw. 75% of the causal negligence was attributed to defendant and 25% thereof to plaintiff. Judgment for plaintiff was entered upon the verdict on May 22, 1953. Defendant appeals.
Hammond & Hammond, Kenosha, Cavanagh, Mittelstaed, Sheldon & Heide, Kenosha, of counsel, for appellant.
Lepp & Phillips, Kenosha, for respondent.
Defendant contends that his operation of a mink farm is an enterprise excluded from the operation of the safe-place statute. The statute applies to all places of employment except, among other operations, 'farm labor when the employer is the farmer operating the farm and the labor is such as is customarily performed as a part of farming, and including the transportation of farm products immediately and directly from the farm, and of materials, supplies or equipment directly to the farm for use thereon.' Stats. § 101.01(1)(b).
In Eberlein v. Industrial Commission, 237 Wis. 555, 297 N.W. 429, a case involving the application of the Workmen's Compensation Act, it was held that one engaged in the raising of foxes separately and as a distinct business and apart from a general farming operation is not 'farming', and therefore not exempt from liability as an employer under the provisions of the act which provided that it shall not apply to 'farmers' or to 'farm labor'.
In Cedarburg Fox Farms, Inc. v. Industrial Commission, 241 Wis. 604, 6 N.W.2d 687 the court was called upon to consider whether fox farming constituted farm labor within the meaning of Chapter 108, Stats.1935, the Unemployment Compensation Act, which exempted farmers in its operation in the following language:
Sec. 108.02(e), Stats.1935. The court held also that the operator of the fox farm was not in the class of those exempted by the act.
The reasoning of these cases would seem to require the conclusion that the term 'farm labor' as it is used in sec. 101.01(1)(b) does not include the operation of a mink farm.
One engaged in the operation of a mink farm is not engaged in the customary type of farming as that term is ordinarily understood in this community. As we construe defendant's argument he does not take serious issue with that determination.
He urges, however, that by enactment of Chapter 563 of the Laws of 1945 the legislature expressed its intent that the raising of fur-bearing animals should be deemed an agricultural pursuit within the meaning of the provisions of the safe-place statute. Chapter 563 of the Laws of 1945 was made a part of Chapter 29 of the statutes and numbered sec. 29.579. It provides:
'The breeding, raising and producing in captivity, and marketing of foxes, fitch, nutria, marten, fisher, mink, chinchilla, rabbit or caracul, shall be deemed an agricultural pursuit, and all such animals so raised in captivity or lawfully taken, shall be deemed domestic animals, subject to all the laws of the state with reference to possession, ownership and taxation as are at any time applicable to domestic animals.'
Chapter 29 of the statutes is entitled 'Fish and Game' and contains provisions exclusively applicable to fish and game.
We agree with the trial court that the provision quoted from Chapter 563 of the Laws of 1945 cannot be construed as indicating a purpose on the part of the legislature to broaden the exemption provided for farmers by the terms of sec. 101.01(1)(b).
Defendant contends that the use of the term 'agricultural pursuit' in Ch. 563, Laws of 1945 demonstrates the intention of the legislature to 'nullify the Eberlein decision', in which the court rejected the claim of exemption upon the ground that the operation there involved was not an 'agricultural pursuit'; that the use of the expression in Chapter 563 must be construed as an indication of the legislature's purpose to make mink farming an agricultural pursuit for all purposes. We do not agree. If the legislature had intended to broaden the exemption for farmers in the provisions of the safe-place statute it might easily have done so by express reference to the latter as it has done with respect to the exemptions contained in the unemployment compensation and workmen's compensation acts.
Prior to 1939 sec. 108.02(5)(g), a part of the Unemployment Compensation Act, provided:
'The term 'employment,' except as a given employer elects otherwise with the commission's approval, shall not include:
.
By Chapter 372 of the Laws of 1939 the term 'agricultural labor' as used in the Unemployment Compensation Act was defined to include service performed 'on a farm, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, bees, poultry, and fur-bearing animals and wildlife.' Thus it appears that when the legislature considered that farmers engaged in the raising of fur-bearing animals should be exempt from the provisions of the Unemployment Compensation Act it did so by amending the specific statutes which provide for unemployment compensation, and expressly made it a part of the act.
Prior to 1945 sec. 102.04(2), Stats. provided that the provisions of the Workmen's Compensation Act 'shall not apply to farmers or to farm labor.' By chapter 456 of the Laws of 1947 section 102.04(4), the term 'farmer' was amended by inserting the following:
"Farmer' means any person, firm and private corporation engaged in farming as defined. Operation of farm premises shall be deemed to be the planting and cultivating of the soil thereof; the raising and harvesting of agricultural, horticultural or arboricultural crops thereon; the raising, breeding, tending, training and management of live stock, bees, poultry, fur bearing animals, wild life or aquatic life, or their products, thereon; * * *.'
Thus, again, when the legislature...
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...of a judicial construction is not as probative as the intent of the legislature when it enacted the statute. See Maus v. Bloss, 265 Wis. 627, 633-34, 62 N.W.2d 708 (1954) overruled in part on other grounds by Lovesee v. Allied Dev. Corp., 45 Wis.2d 340, 173 N.W.2d 196 (1970).18 As explained......
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...of 1943, can have no weight in a construction of the statute as it existed before the amendment. . . . ' See also: Maus v. Bloss (1954), 265 Wis. 627, 634, 62 N.W.2d 708, 712, this court holding: '. . . it is quite generally held that the legislature cannot by a later act establish or affec......
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State ex rel. Larson v. Giessel
...enactment so as to make such construction binding upon a court faced with making a construction of the earlier act. Maus v. Bloss, 1954, 265 Wis. 627, 634, 62 N.W.2d 708; and Green Bay Drop Forge Co. v. Ind. Comm., 1953-1954, 265 Wis. 38, 51, 60 N.W.2d 409, 61 N.W.2d 847. By analogy it woul......
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Lovesee v. Allied Development Corp., 10
...safe-place statute is always more than any contributory negligence founded upon a common-law duty. Lovesee relies on Maus v. Bloss (1953), 265 Wis. 627, 62 N.W.2d 708, for the principle that a violation of the safe-place statute must necessarily contribute more to causation than common-law ......