Murphy Supply Co. v. Fredrickson

• Decision Date: 08 December 1931
• Citation: 239 N.W. 420,206 Wis. 210
• Parties: MURPHY SUPPLY CO. v. FREDRICKSON ET AL.
• Court: Wisconsin Supreme Court

206 Wis. 210

239 N.W. 420

MURPHY SUPPLY CO.

v.FREDRICKSON ET AL.

Supreme Court of Wisconsin.

Dec. 8, 1931.

Appeal from a judgment of the Circuit Court for Dane County; August C. Hoppmann, Circuit Judge.

Action by the Murphy Supply Company and another against Fred Fredrickson and others to set aside an award of the Industrial Commission. From a judgment affirming the award, plaintiffs appeal.--[By Editorial Staff.]

Affirmed.

The applicant, Fred Fredrickson, sustained injuries on April 3, 1930, while performing services growing out of and incidental to his employment. The Industrial Commission found that at the time of his injury the applicant was in the employ of the Murphy Supply Company and was injured as a result of a hazard growing out of and incidental to such employment, and ordered compensation accordingly.

This action was commenced November 25, 1930, to set aside the order and award of the Industrial Commission. This action resulted in a judgment affirming in all respects the award and order of the Industrial Commission. From such judgment entered on the 15th day of June, 1931, the plaintiff appealed.Olin & Butler and C. G. Mathys, all of Madison, for appellants.

John W. Reynolds, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondents.

NELSON, J.

The facts, though somewhat meager, are not in dispute. Morley Murphy Supply Company, hereinafter called the Morley Company, and the Murphy Supply Company, hereinafter called the appellant, were at all times mentioned herein separate corporations, doing business in the city of Green Bay. Their respective places of business are situated about half a block apart. About twenty years ago both companies desired to have their places of business watched by a watchman during the nighttime and on Sundays and holidays. Neither company felt able singly and separately to employ a night watchman, so it was agreed between these companies that the Morley Company should select and hire a workman to perform services as a watchman for both companies. Just what the agreement was does not appear. It does appear, however, that, during all the years when such arrangement existed, the Morley Company, with the entire approval of the appellant, from time to time hired different persons to perform the services of night watchman for both companies. The person so employed made regular inspections of both places of business. His hours of work commenced at 6 o'clock and continued until 4 or 5 o'clock in the morning. Every night the watchman alternately inspected the two places of business, punching time clocks from time to time during the night as he proceeded with his work. The premises of the Morley Company were somewhat more extensive as to floor space than those of the appellant. Fredrickson had been employed as such night watchman for about five or six years. In the Morley Company's place of business he was required to punch seventeen time clocks and in the appellant's place of business four clocks. Wages received by him at the time of his injury amounted to $105 per month. While the Morley Company attended to the matter of paying him his wages, the appellant contributed the sum of $40 each month toward the payment of such wages. On April 3, 1930, the applicant first visited the premises of the appellant for the purpose of discharging his duties for said company. While on such premises he fell into an opening in the floor which resulted in his injuries and subsequent disability. After hearing, the commission found “that at the time of his injury the applicant was in the employ of the Murphy Supply Company and injured as a result of a hazard growing out of and incidental to his employment,” and ordered compensation to be paid by Murphy Supply Company to the applicant.

Appellant contends (1) that Fredrickson, when injured, was performing services as an employee of the Morley Company and not as an employee of the appellant; and (2) that, even if the appellant is liable at all, it is liable jointly with the Morley Company, and the award herein should have been made against both companies jointly.

[1] Appellant's first contention rests largely upon the claim that Fredrickson was not its employee, but was in fact the employee of the Morley Company, and was simply performing watchman services pursuant to a contract between the two companies under which the Morley Company agreed to furnish watchman services to the appellant. Were this the undisputed situation shown by the record, there would be much merit in appellant's contention, and this case would be ruled by Visiting Nurse Association v. Industrial Commission, 195 Wis....