Montello Granite Co. v. Indus. Comm'n

• Decision Date: 15 March 1938
• Citation: 278 N.W. 391,227 Wis. 170
• Parties: MONTELLO GRANITE CO. v. INDUSTRIAL COMMISSION et al. (two cases).
• Court: Wisconsin Supreme Court

227 Wis. 170

278 N.W. 391

MONTELLO GRANITE CO.

v.INDUSTRIAL COMMISSION et al. (two cases).

Supreme Court of Wisconsin.

March 15, 1938.

Appeals from judgments of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Modified and affirmed.

Two actions were commenced on July 24, 1936, by the plaintiff, Montello Granite Company, against the defendants, Joseph Heller and Industrial Commission and against Robert Zellmer and Industrial Commission, to review two orders of the commission, dated July 20, 1936, which affirmed two orders of one of its examiners which awarded compensation to Joseph Heller and Robert Zellmer. Both claims for compensation were heard by the same examiner. Since much of the evidence adduced was applicable to both claims, it was stipulated that the relevant evidence adduced in support of either claim might be considered in the other. The circuit court, after due hearing, confirmed the orders of the commission. From the judgments, entered May 27, 1937, the plaintiff appealed. The facts will be stated in the opinion.Vincent McNamara, of Montello, and Goggins, Brazeau & Graves, of Wisconsin Rapids, for appellant.

Orland S. Loomis, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., and Grady, Farnsworth & Walker, of Portage, for respondents Industrial Commission and Joseph Heller.

Orland S. Loomis, Atty. Gen., Mortimer, Levitan, Asst. Atty. Gen., and Bogue, Sanderson & Kammholz, of Portage, for respondents Industrial Commission and Robert Zellmer.

NELSON, Justice.

The plaintiff considers itself aggrieved by the judgments of the circuit court which confirmed the orders of the commission which awarded compensation to the applicants, Heller and Zellmer, because a contractual arrangement existed between the plaintiff and a partnership known as Granite Men's Company, of which Heller and Zellmer were members, which exempted the plaintiff from the provisions of the Compensation Act, St.1935, § 102.01 et seq., and because, in any event, no compensable disability was shown to have been sustained by either Heller or Zellmer.

The examiner in substance found: That for many years prior to the end of December, 1932, the plaintiff had operated its granite quarry and plant at Montello and had been an employer of labor; that during most of the time since the Compensation Act was enacted the plaintiff was subject to its provisions; that commencing July 1, 1926, and ending May 8, 1931, the plaintiff, as an employer, was not subject to the act, Montello Granite Co. v. Industrial Comm., 212 Wis., 243, 248 N.W. 427, 249 N.W. 516; that at the end of December, 1932, the plaintiff shut down its plant because the cost of operating it had become unprofitable; that for many years prior to the end of December, 1932, the applicant Heller had been an employee of the plaintiff and had been subject to the provisions of the act whenever the plaintiff was subject to it; that he had worked for the plaintiff approximately forty-two years in connection with polishing granite; that during practically all of that time he had been exposed to the inhalation of dust containing silica; that as a result he became afflicted with silicosis, and that that disease is now in its “third stage”; that his last day of work for the plaintiff was September 6, 1935; that he sustained no disability causing a wage loss or time loss prior to the last day he worked for the plaintiff; that since said September 6, 1935, he has been permanently partially disabled because of said silicosis to the extent of two-thirds of total disability, and is entitled to compensation on that basis since September 6, 1935.

The examiner further found as to the applicant Zellmer: That at the time of the hearing, he was forty-six years of age; that for twenty-one years he had worked as a stonecutter for the plaintiff, in which employment he had been exposed to the inhalation of dust containing silica, and was suffering from silicosis which was in its “third stage”; that September 13, 1935, was the last day he worked for the plaintiff; that he sustained no disability causing a wage loss or time loss prior to the last day he worked for the plaintiff; that since September 13, 1935, he has been permanently partially disabled because of said disease to the extent of two-thirds of total disability; and that he is entitled to compensation on that basis since September 13, 1935.

The plaintiff contends that the findings that Heller's last day of work for the plaintiff was September 6, 1935, and that Zellmer's last day of work for the plaintiff was September 13, 1935, are not supported by the evidence, because at those times both applicants were performing work for Granite Men's Company, a partnership, of which the applicants were members, and that the partnership was an independent contractor. With respect to that contention or issue, the examiner, in substance, found: That in the spring of 1933, some time prior to June 24, 1933, there were negotiations concerning the reopening of the plaintiff's plant, which had been shut down since December, 1932, and discussions as to how it might be reopened and successfully operated; that the matter was discussed by the plaintiff's president and general manager with representatives of the plaintiff's former employees who had been out of work since the plant was shut down; that both the plaintiff and such of its former employees as were to have an opportunity to work in the plant in case it was reopened, were desirous of having the plant operate again; that the plaintiff desired that the plant be reopened both for the purpose of making a profit and for the purpose of furnishing work to its former employees; that in the course of such negotiations and conferences a Montello attorney was requested to draw up a partnership agreement, to be entered into by the employees, and a lease of the plaintiff's plant to the partnership; that such partnership agreement and lease were drawn up after discussing the matter with the plaintiff and with representatives of plaintiff's former employees; that the partnership agreement and the lease were explained to all of the parties concerned before it was signed; that the attorney who drew up the agreement was the attorney of the employees; that the partnership agreement was signed by fifty-one of the plaintiff's former employees; that the lease was signed by the plaintiff's officers and by certain former employees, who had been authorized so to do, by all of the others who had signed the partnership agreement; that both the partnership agreement and the lease were renewed every three months until August, 1935; that the wording of the partnership agreement and the lease and the renewals thereof indicate an intention to create a partnership; that there was no fraud in connection with the making of the partnership agreement or lease; that considering only the partnership agreement and lease, a partnership would appear to have been created and a relationship of lessor and lessee established between the plaintiff and its former employees who had signed the partnership agreement; that on or about June 28, 1933, the applicants and other former employees went back to work at the plaintiff's plant doing work similar to that which they had previously done; that on September 2, 1933, after having been at work from about June 28, 1933, the applicants and other employees who had gone back to work, executed on September 2, 1933, a “notice of nonelection of copartner or official of corporation” addressed to the plaintiff and delivered it to the plaintiff, which read as follows: “You will take notice that we, your employees, elect not to be subject to the provisions of the workmen's compensation act of Wisconsin while in your employ until further written notice”; that said notice was filed with the commission on September 5, 1933; that by legislative enactment effective July 14, 1933, Laws 1933, c. 402, the law which defined partners to be employees was repealed; that said notice was ineffective if the applicant and the others who signed the same were employees because of an act of the Legislature effective May 7, 1931, Laws 1931, c. 87, which required that all employers, employing three or more employees, should be subject to the provisions of the Compensation Act and that their employees should be subject to it; that the applicants' work and that of the other employees who signed the original partnership agreement was the same sort of work that they had previously done as employees of the plaintiff; that they were under the same sort of supervision as before; that the applicants were paid by the hour as provided by the partnership agreement; that their earnings or income from their work were dependent upon the number of hours that they worked; that the amount of the product which could be disposed of by the plaintiff determined the number of hours that the former employees could work; that at times there was not enough work for the applicants and all the other employees, and the work at such times was staggered so as to give some work and some income to all of them; that the applicants and other former employees had no right to work as many hours as they desired; that the Granite Men's Company had no right to sell any product to any one except to the plaintiff; that the finished products of the applicants and other former employees under the partnership agreement were the property of the plaintiff to sell or to do with as it desired; that the only benefits derived by the applicants, and the other former employees who were members of the Granite Men's Company, were the wages received by them which were fixed by the partnership agreement; that in doing the work after the agreement of partnership was entered into, the applicants and other former employees were subject to the directions of foremen who had been foremen in the plant prior to the signing of the partnership agreement; that shortly after the original...