Milwaukee News Co. v. Indus. Comm'n

• Decision Date: 12 January 1937
• Citation: 224 Wis. 130,271 N.W. 78
• Parties: MILWAUKEE NEWS CO. v. INDUSTRIAL COMMISSION et al. MILWAUKEE NEWS CO. et al. v. SAME.
• Court: Wisconsin Supreme Court

224 Wis. 130

271 N.W. 78

MILWAUKEE NEWS CO.

v.INDUSTRIAL COMMISSION et al.^*

MILWAUKEE NEWS CO. et al.

v.SAME.

Supreme Court of Wisconsin.

Jan. 12, 1937.

Appeals from three judgments of the Circuit Court for Dane County; August C. Hoppmann, Judge.

Affirmed.

Actions were commenced by the Milwaukee News Company and its compensation insurance carrier, the Bankers Indemnity Insurance Company, as plaintiffs, and also by the Milwaukee News Company, as the sole plaintiff, against Cono Librizzi and the Industrial Commission of Wisconsin to vacate awards made by the latter for the payment of workmen's compensation to Librizzi. Upon a trial of the issues, judgments were entered affirming the awards. The plaintiffs appealed from those judgments.Harry V. Meissner and Morris Stern, both of Milwaukee (A. L. Skolnik, of Milwaukee, of Counsel), for appellants.

James E. Finnegan, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondent Industrial Commission.

Mario A. Megna, Jr., and William Shapiro, both of Milwaukee, for respondent Librizzi.

FRITZ, Justice.

Upon these appeals the principal ultimate questions are (1) whether, at the time of his injury, Cono Librizzi was an employee of the Milwaukee News Company (hereinafter called the News Company) within the meaning of section 102.07 (4), Stats.; and, if so, (2) whether he, as a 15 year old minor, who was suffered or permitted to work illegally without a written permit issued pursuant to section 103.05, Stats., is entitled, under section 102.60 (1), Stats., to the payment of double the amount of compensation.

The evidence establishes that on August 8, 1931, Librizzi, while assisting Harry Simon in delivering newspapers for the News Company to its customers, was injured while riding on a truck owned and operated by Simon, who carried an automobile liability insurance policy; that in January, 1932, an application for the payment of workmen's compensation by the News Company was duly filed on behalf of Librizzi; that in April, 1932, his attorney applied for the dismissal of that application by consent, upon a stipulation stating that the relationship of employee and employer did not exist between Librizzi and the News Company, and Simon carried his own liability insurance covering the accident; that in response to a request by the Industrial Commission for details as to the reason for the dismissal, Librizzi's attorney stated that he had concluded that there was no relation of master and servant between the News Company and Librizzi, and that as that was an essential jurisdictional element he thought it advisable to dismiss the application, and had started an action against the News Company and Simon to recover damages for the personal injuries sustained by Librizzi by reason of Simon's negligent operation of his truck; that notwithstanding that stipulation the Commission did not dismiss Librizzi's application for compensation; that subsequently his complaint in that action was voluntarily dismissed after the court held, upon a preliminary trial, that Simon's automobile liability insurance policy did not cover his truck; but that prior to that dismissal Librizzi had made statements under oath on an inquiry in respect to the proposed dismissal of his application for workmen's compensation, and also on direct and adverse examinations in the court action, to the following effect: That from August 1, 1931, until his injury he rode voluntarily with Simon each morning; that he never met Simon at the News Company office, and had no regular place to meet him, and was not required to do so under their arrangement; and that Simon had never promised Librizzi anything for riding with him and there was no relationship of employee and employer between them.

In January, 1935, a hearing was requested on Librizzi's undisposed of application for workmen's compensation, and thereupon evidence was taken on that application by two of the Industrial Commission's examiners, who made findings and conclusions to the following effect. That prior to and at the time of Librizzi's injury, Simon delivered newspapers and magazines for the News Company as its employee, and received from it $45 per week for that service and the use of his truck, for which he furnished the necessary gasoline, oil, and repairs. That Aaron Trosch, an officer of the News Company, had employed Simon to work for it, and Trosch and George Ostendorf, another one of its employees, told Simon what and how to do that work, what stops he was to make and where to leave and to pile the newspapers and magazines; and that the News Company had full control of the details of the work performed by Simon, and he was an employee of that company. That at the time of his injury and for several weeks prior thereto Librizzi was “jumping stops” for Simon, who had requested the applicant to ride with him and “jump stops” for him, and in consideration of that help had, at times, given Librizzi small amounts of money and promised to use his influence to get a paper route for him as a newsboy and also to take him to Indianapolis; and that at the time of the accident Librizzi was in the employ of Simon and performing service for him growing out of and incidental to that employment. However, in addition the examiners found and concluded that the News Company had no knowledge, actual or constructive, that Librizzi was helping Simon and that, therefore, that company was not liable for compensation under section 102.07 (4), Stats.

The Industrial Commission, upon a petition to review, approved the examiners' finding that Librizzi had been employed and paid by Simon, and had helped him in his work for the News Company and had been paid by him for that work. But the Commission, contrary to the examiners' determination, found and concluded, on the one hand, that Simon was an independent contractor under the News Company, instead of being one of its employees, and that he was not subject to the Compensation Act, and did not carry compensation insurance; but that, on the other hand, Librizzi had worked on Simon's truck for approximately two months prior to his injury, and that his work brought him to the News Company's establishment where he assisted in cleaning up its place, in tying and carrying bundles of newspapers and magazines from Simon's truck, and he had waited for periods of an hour or more for the next delivery; that he had been given money for his work by Simon and also by the manager in charge of the News Company, and that through that manager and its treasurer, Trosch, the News Company saw Librizzi working both for Simon and also directly for it at various times; and that it had both actual and constructive knowledge that he was an employee of Simon at the time of his injury. Upon those facts and the Commission's further findings that Librizzi was 15 years of age, and had been employed, required, suffered, and permitted to work without a written permit issued under section 103.05, Stats., the Commission concluded and ordered, on July 16, 1935, that he was entitled, under section 102.60, Stats., to the payment by the News Company and its compensation insurance carrier of double the amount otherwise recoverable. Separate actions were commenced by the employer and insurance carrier to review that award of July 16, 1935, and thereafter, on August 5, 1936, the Industrial Commission, on its motion, entered an order in which it stated:

“It has now discovered a mistake in the finding that ‘Simon was a contractor under the respondent Milwaukee News and that Simon was not subject to the Workmen's Compensation Act, nor did he carry compensation insurance covering his employee’ as contained in the last three lines on the first page of the Commission's findings of fact and order and also in the statement of the formal findings of fact contained on page two, ‘that said Harry Simon was a contractor under the respondent Milwaukee News'.

“The Commission amends its findings and order by striking out such findings and by substituting therefor the following finding:

“‘That said Harry Simon was an employee of the respondent Milwaukee News.’

“Except as amended, the Commission reiterates the findings of fact and order made on July 16, 1935.”

Another action was commenced to vacate that last order, and upon the entry of the judgments affirming the award, the plaintiffs appealed therefrom.

[1] Under the facts as they were ultimately found by the Commission, the alleged liability of the News Company for ordinary or simple (as distinguished from double) compensation, under the Workmen's Compensation Act, depends upon whether Librizzi can be considered an “employee” of the News Company as an employer, under the provision in section 102.07 (4), Stats., that the word “employe” as used in chapter 102, Stats.1931, means, in addition to “Every person in the service of another under any contract of hire, express or implied,” also “all helpers and assistants of employes, whether paid by the employer or employe, if employed with the knowledge, actual or constructive, of the employer” (with certain exceptions which are immaterial here). Therefore, in view of that definition, the crucial issues of fact herein are (1) whether, at the time of the accident, Simon was an employee of the News Company and not an independent contractor; (2) whether Librizzi was a helper or assistant of Simon in the latter's employment as an employee of the News Company, and was paid by Simon or that company; and (3) whether Librizzi's help or assistance in that respect was rendered with the knowledge, actual or constructive, of that company. In relation to the first of those issues, the evidence amply sustains the finding that Simon was an employee of the News Company, because it retained and exercised full control and supervision of the work which he did for it. Although he owned the truck and paid for the expenses incurred in operating it in his employment for the News Company at the...