Mckesson-Fuller-Morrison Co. v. Indus. Comm'n

• Decision Date: 10 October 1933
• Citation: 250 N.W. 396,212 Wis. 507
• Parties: MCKESSON-FULLER-MORRISON CO. v. INDUSTRIAL COMMISSION ET AL.
• Court: Wisconsin Supreme Court

212 Wis. 507

250 N.W. 396

MCKESSON-FULLER-MORRISON CO.

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

Oct. 10, 1933.

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

This action was commenced by the McKesson-Fuller-Morrison Company, plaintiff, on the 21st day of March, 1932, against Ella Buck, Alice Buck, Georgeanna Sturneman Buck, and Industrial Commission of Wisconsin, defendants, to vacate an award of the Industrial Commission. From a judgment rendered on the 16th day of December, 1932, confirming the award of the Industrial Commission in favor of Ella Buck, the plaintiff appeals.Quarles, Spence & Quarles and Victor D. Werner, all of Milwaukee (Arthur B. Doe, of Milwaukee, of counsel), for appellant.

James E. Finnegan, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., and Olin & Butler and E. L. Wingert, all of Madison, for respondents.

OWEN, Justice.

Plaintiff is a wholesale drug concern with branch headquarters in Chicago. For nearly 40 years Charles Buck had been in its employ as a traveling salesman, covering territory in Minnesota and Wisconsin. Until about a year and a half prior to his death on January 6, 1931, Buck's headquarters were at Winona and his territory in Minnesota. At that time he was given Wisconsin territory, and he made his headquarters for a time at Eau Claire. At the time of his death, his headquarters were at Madison and had been for about a year, from which point he covered his Wisconsin territory. On January 4, 1931, he drove to Chicago in obedience to a summons from the Chicago branch. It appears that he was so summoned for conference upon matters pertaining to his employment. Upon his return trip on January 6th, he met with an accident about a mile west of the village of Udine, in the state of Illinois, from which he died a few hours later. At the time of his death he maintained a home in Madison, where his mother, Ella Buck, in whose favor the award was made, lived with him. The award was to the mother for total dependency.

[1][2] The first question raised on this appeal, though not seriously pressed, is a lack of jurisdiction on the part of the Industrial Commission to make the award. The plaintiff and employer is an unlicensed foreign corporation. Notice of hearing was duly mailed to the plaintiff at Chicago, but no notice was filed with the secretary of state, as required by section 102.17, Stats., in case a party in interest is located without the state and has no post office address within the state. It is contended that the filing of this notice with the secretary of state was essential to jurisdiction; the plaintiff and employer being an unlicensed foreign corporation with no post office address in this state. This objection was made before the examiner before testimony was taken. No ruling was made upon the objection, but the examination proceeded, and the attorney for the employer appeared and took part at all times from the beginning to the end of the proceedings. It is contended that the necessary statutory steps to obtain jurisdiction of the employer were not complied with, in that no copy of the application or notice of hearing was filed with the secretary of state. But it is contended by respondent that such lack of jurisdiction was waived by appearance and participation in the proceedings before the Industrial Commission. Of course, this is a familiar principle with reference to judicial proceedings. While this principle does not necessarily obtain in proceedings before administrative bodies, and while it is well understood that in certain administrative proceedings, such as laying out of highways and the formation of drainage districts, the administrative body must take all necessary statutory steps to acquire jurisdiction, nevertheless there is much reason for applying the rule obtaining in judicial proceedings where the administrative body is of a quasi judicial nature. It has been applied in this state in proceedings before boards of review. State ex rel. Smith v. Cooper, 59 Wis. 666, 18 N. W. 438;State ex rel. Smith v. Gaylord, 73 Wis. 306, 41 N. W. 518;Bogue v. Laughlin, 149 Wis. 271, 136 N. W. 606, 40 L. R. A. (N. S.) 927, Ann. Cas. 1913C, 1367. In view of these precedents, we hold that the general appearance made before the Industrial Commission waived any lack of jurisdiction on the part of the commission by reason of its failure to file the notice required with the secretary of state. Where the party interested intends to rely upon a lack of jurisdiction, it should refrain from appearing generally and participating in the proceedings, thus giving the Industrial Commission an opportunity to take the steps necessary to perfect its jurisdiction.

[3][4] The principal contention made by the appellant is, that the Industrial Commission had no jurisdiction over this proceeding and, consequently, no jurisdiction to make the award, and a strenuous argument is made in the brief upon this question under the topic head “Conflict of Laws.” No claim is made that the employer was not subject to the Workmen's Compensation Act of this state, if its salesmen were employees rather than independent contractors, a question to be considered.

The plaintiff had three traveling salesmen in this state covering the territory of this state, working in much the same capacity characterizing Buck's services or employment. It is said, however, that there is no evidence that the contract of employment was made in Wisconsin; that whatever contract there was, was made when Buck entered the employment 40 years ago, and that it was probably made in the state of Illinois, because that is where the principal office or the branch office under which Buck worked was located, and that, the employment having been pursuant to an Illinois contract, and the accident having taken place in Illinois, the Industrial Commission of the state of Illinois and not Wisconsin had jurisdiction to award compensation. It also appears that, at the time the award herein was made, Ella Buck had already made application to the Compensation Board of Illinois for compensation.

Questions very analogous if not entirely similar to those here argued have received the attention of this court in Anderson v. Miller Scrap Iron Co., 169 Wis. 106, 170 N. W. 275, 171 N. W. 935;Zurich General Accident & Liability Ins. Co. v. Industrial Commission, 193 Wis. 32, 213 N. W. 630;Wandersee v. Industrial Commission, 198 Wis. 345, 223 N. W. 837;Val Blatz Brewing Company v. Industrial Commission, 201 Wis. 474, 230 N. W. 622;Interstate Power Company v. Industrial Commission, 203 Wis. 466, 234 N. W. 889. In all those cases this court has insistently maintained the position that, where the relation of employer and employee exists in this state, and the employee, as incidental to his duties, is sent beyond the borders of this state, and there sustains an injury, he is entitled to compensation under the laws of our state. It does not make any difference where the contract of employment was made; neither does it make any difference whether the employee was a resident of this state.

When workmen's compensation laws originated, they were challenged as an unwarranted interference with the right of contract. While it was conceded that they did terfere with the right of contract, such interference was held to be a legitimate exercise of the police power by the Supreme Court of the United States. In New York Central R. Co. v. White, 243 U. S. 188, on page 207, 37 S. Ct. 247, 254, 61 L. Ed. 667, L. R. A. 1917D, 1, Ann. Cas. 1917D, 629, the interest of the state in injured and crippled employees was pointed out, and it was said: “One of the grounds of its concern with the continued life and earning power of the individual is its interest in the prevention of pauperism, with its concomitants of vice and crime. And, in our opinion, laws regulating the responsibility of employers for the injury or death of employees, arising out of the employment, bear so close a relation to the protection of the lives and safety of those concerned that they properly may be regarded as coming within the category of police regulations.”

In the cases above cited this court has emphasized the fact that the Workmen's Compensation Act affects the relation of employer and employee, and its benefits extend to all those who are brought under its provisions. Under the express provisions of the act, an employee is one who renders services for another in the state of Wisconsin under a contract of hire, express or implied, oral or written. Where the employer under the act engages a person to perform services in this state under a contract of...