McCartin v. Indus. Comm'n

• Decision Date: 12 April 1946
• Citation: 248 Wis. 570,22 N.W.2d 522
• Parties: McCARTIN et al. v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

248 Wis. 570

22 N.W.2d 522

McCARTIN et al.

v.INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

April 12, 1946.

Appeal from a judgment of the Circuit Court for Dane County; Herman W. Sachtjen, Judge.

Affirmed.

This is an appeal from a judgment of the circuit court for Dane county entered November 7, 1945, setting aside an interlocutory award of the Industrial Commission dated May 15, 1944, ordering the respondents, E. E. McCartin and Continental Casualty Company, a corporation, to pay certain sums as compensation to the appellant, Leo Thomas Kopp, because of injuries sustained by him while in the employ of respondent E. E. McCartin. The material facts will be stated in the opinion.John E. Martin, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for appellant.

Wilkie, Toebaas, Hart & Jackman, of Madison, for respondent.

BARLOW, Justice.

This is a workman's compensation case. Leo Thomas Kopp, a resident of Illinois, was an employee of E. E. McCartin, an Illinois resident. Pursuant to a contract made in Illinois, Kopp agreed to work as a bricklayer on a building job in Beloit, Wisconsin, the job lasting about ten months, during which time Kopp drove back and forth between his home in Rockford, Illinois, and the building job in Beloit, Wisconsin. On May 5, 1943, while so employed on the Beloit job, Kopp suffered an injury to his left eye, resulting in a traumatic cataract. Both employer and employee were subject to the Wisconsin Compensation Act. St.1943, § 102.01 et seq. On June 7, 1943, Kopp filed an application for adjustment of claim with the Industrial Commission of Wisconsin, and on July 20, 1943, filed application for adjustment with the Industrial Commission of Illinois. On November 29, 1943, a settlement contract, dated November 3, 1943, was filed with the Illinois commission, and on November 29, 1943, Kopp filed with the Illinois commission a petition for lump sum payment. On December 3, 1943, the Illinois commission held a hearing on the application for lump settlement, and on that day endorsed its approval of the petition. December 7, 1943, full payment was made of compensation due under the Illinois Compensation Act, Ill.Rev.Stat.1943, c. 48, § 138 et seq., and on January 10, 1944, the Illinois commission issued a lump sum settlement order. The Wisconsin commission held a hearing February 24, 1944, at which time the contention was made that Wisconsin had no jurisdiction. April 18, 1944, after hearing, the examiner entered an interlocutory award holding that Wisconsin had jurisdiction, and ordering the payment of certain benefits but giving credit for the sums paid under the Illinois law, and making reservations not material here. The award of the examiner was affirmed by the Industrial Commission of Wisconsin May 15, 1944, which order and award were set aside by the circuit court.

It is undisputed that both the Industrial Commission of Illinois and the Industrial Commission of Wisconsin had jurisdiction to award compensation at the time of the injury. It appears that the law of this state provides for a larger compensation than does the law of Illinois for an injury such as Kopp received.

This court held in Interstate Power Co. v. Industrial Commission, 1931, 203 Wis. 466, 234 N.W. 889;Salvation Army v. Industrial Commission, 1935, 219 Wis. 343, 263 N.W. 349, 101 A.L.R. 1440, and Wisconsin Bridge and Iron Co. v. Industrial Commission, 1936, 222 Wis. 194, 268 N.W. 134, that an award for compensation in another state would not preclude recovery of an award in Wisconsin; however, the amount of the award in the other state must be credited upon the Wisconsin award.

In one of these cases, Salvation Army v. Industrial Commission, the employer was an Illinois corporation and the employee an Illinois resident who sustained a fatal injury in Wisconsin. The procedure approved in that case is the one that was followed here, and there would be no question about it being proper if it were not for the case of Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 215, 88 L.Ed. 149, 150 A.L.R. 413, decided December 20, 1943, by the Supreme Court of the United States. There the employee Hunt was employed in Louisiana by the Petroleum company in connection with the drilling of an oil well, and was sent by his employer from Louisiana to Texas, and while working there sustained an injury. Application for award was made in Texas under the Workmen's Compensation Law of that state, Vernon's Ann.Civ.St.Tex. art. 8306 et seq., and the Texas insurer began to make payments. Hunt then returned to his home in Louisiana and notified the insurer of his intention to claim under the statute of Louisiana. Four days later, without any request from Hunt, the Texas board notified him that a hearing would be held in Texas within two and a half weeks ‘to determine the liability of the insurance company under the Texas Law.’ Hunt did not participate in that proceeding. The Texas board made an award but, before this became final, Hunt declined to accept money under it and filed suit in Louisiana under the Workmen's Compensation Law of Louisiana. Act No. 20 of 1914. He recovered judgment for a larger amount than the Texas award, from which the Louisiana court deducted the sum he had already received from the Texas insurer. On appeal, the Supreme Court of the United States held that the full faith and credit clause, Art. IV, sec. 1, Constitution of the United States, applied to findings and awards by commissions as well as judgments and decrees of courts, and that ‘The Texas award, being a bar to any further recovery of compensation for respondent's...