Porter v. Indus. Comm'n of Wis.

• Decision Date: 08 February 1921
• Citation: 181 N.W. 317,173 Wis. 267
• Parties: PORTER v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL. WISCONSIN STATE REGISTER CO. v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

173 Wis. 267

181 N.W. 317

PORTER

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

WISCONSIN STATE REGISTER CO.

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

Feb. 8, 1921.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Actions by A. A. Porter and Wisconsin State Register Company, respectively, against the Industrial Commission and Travelers' Insurance Company. Judgment for plaintiffs, and defendants Industrial Commission and insurer appeal. Reversed and remanded, with directions.

These actions, which are presented together, arose from the application of the defendant A. A. Porter for an award of compensation. In one case A. A. Porter is plaintiff, in the other the Wisconsin State Register Company is plaintiff.

A. A. Porter, president and chief stockholder of the Wisconsin State Register Company, suffered a severe injury to one of his eyes while waiting on a customer in the stock room of the Wisconsin State Register Company. He made claim for compensation before the Industrial Commission, and the Traveler's Insurance Company contested his claim. The Industrial Commission filed an award finding certain facts, and concluded he was not an “employé.” For this reason the commission denied him compensation under the Workman's Compensation Act.

Porter and the Register Company thereupon each brought a separate action in the circuit court for Dane county for a review of the commission's order denying compensation. The Register Company also claims damages under the terms of the insurance policy.

The trial court decided that the undisputed evidence disclosed that Porter was an employé of the Register Company within the meaning and terms of the Workman's Compensation Act at the time he was injured, and remanded the case to the commission for further proceedings. From this decision the Industrial Commission and the insurance company appeal to this court.

The complaint in the Register Company's action is the same as that in the Porter case, except that it alleges that for many months following the alleged injury Porter was wholly incapacitated from working, and during that time the Register Company paid to him his wages in an amount equal to, or in excess of, the compensation provided by the Workman's Compensation Act. The company asks that it be reimbursed to the amount paid by it to Porter during the time he was incapacitated, and alleges that it is entitled to an award therefor against the defendant insurance company.John J. Blaine, Atty. Gen., and W. W. Gilman, Asst. Atty. Gen., for appellant Industrial Commission.

Olin, Butler, Stebbins & Stroud, of Madison, for appellant Travelers' Ins. Co.

E. S. Baker, of Portage, for respondent Wisconsin State Register Co.

Stroud & Stroud, of Portage, for respondent Porter.

SIEBECKER, C. J. (after stating the facts as above).

[1] The fundamental issue in these actions presents the inquiry: Did the Industrial Commission correctly find that the plaintiff, Porter, at the time he sustained the injury to his eye, in November, 1916, was not an employé of the Wisconsin State Register Company within the contemplation of the Workman's Compensation Act. The trial court held that the undisputed facts permit of but one inference, namely, that he was an employé of the company when he suffered the injury to his eye. Section 2394-7, Statutes, defines the term “employé,” as used in the Workman's Compensation Act; “(4) Every person in the service of another under any contract of hire, express or implied, oral or written.” This act also provides that: “The findings of fact made by the commission acting within its power shall, in the absence of fraud, be conclusive;” and that the order or award of the commission may be reviewed by action in court in the manner prescribed in the act. Among the grounds upon which the order or award may be set aside are: “(1) That the commission acted without or in excess of its powers; (3) that the findings of fact by the commission do not support the award.” In the case of Northwestern Iron Co. v. Industrial Commission, 154 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366, Ann. Cas. 1915B, 877, it is declared that the commission's “findings of fact as recognized by this court mean findings of ultimate, rather than evidentiary, facts. * * * It is only when the facts are undisputed, and no conflicting inference respecting the ultimate facts can be drawn therefrom, that the question becomes one of law.” Citing In Milwaukee Western Fuel Co. v. Industrial Commission, 159 Wis. 635, 150 N. W. 998, the court said: “In the field of inferences from the evidentiary facts their action is final and controlling under the authority conferred upon them by law, unless it appears that there...