Salvation Army v. Indus. Comm'n

• Decision Date: 05 November 1935
• Citation: 219 Wis. 343,263 N.W. 349
• Parties: SALVATION ARMY ET AL. v. INDUSTRIAL COMMISSION ET AL.
• Court: Wisconsin Supreme Court

219 Wis. 343

263 N.W. 349

SALVATION ARMY ET AL.

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

Nov. 5, 1935.

Dissenting Opinion Nov. 5, 1935.

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

Proceeding under the Workmen's Compensation Act by Bogumilla Dubinski for the death of her husband, Alex Dubinski, claimant, opposed by the Salvation Army, employer, and others. From a judgment confirming an order of the Industrial Commission awarding compensation, defendants appeal.--[By Editorial Staff.]

Judgment reversed, and record remanded, with directions.

FAIRCHILD, J., dissenting.

This appeal is from a judgment of the circuit court for Dane county, entered on March 1, 1935, confirming an order and award of the Industrial Commission of Wisconsin made on the 23d day of April, 1934, requiring the payment of certain sums of money to the respondent Bogumilla Dubinski as and for death benefits under the Wisconsin Workmen's Compensation Act (St. 1933, § 102.01 et seq.). Alex Dubinski, husband of the respondent, Bogumilla Dubinski, sustained accidental injury on September 18, 1933, resulting in his death on said date.

The material facts will be stated in the opinion.

Alfred E. La France, of Racine, for appellants.

James E. Finnegan, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., and V. J. O'Kelliher, of Oconto, for respondents.

MARTIN, Justice.

The appellant Salvation Army is a religious and charitable corporation organized under the laws of the state of Illinois, with its principal offices located at the city of Chicago. The respondent Bogumilla Dubinski is the widow of one Alex Dubinski, and at the time in question she and her husband were residents of the city of Chicago. Alex Dubinski, aged fifty-two, was at the time on relief in Chicago. The relief organization referred him to the Salvation Army, which took him to Camp Lake in Kenosha county, Wis., to do carpenter work. On September 18, 1933, while so employed at Camp Lake, he sustained accidental injury resulting in his death on said date. His widow filed an application for compensation in Illinois and an award of compensation in the sum of $3,200 was made by the Industrial Commission of Illinois on February 19, 1934.

On February 3, 1934, the widow also made application for compensation to the Industrial Commission of Wisconsin. A hearing was held and an award of compensation was made by the Industrial Commission of Wisconsin on March 26, 1934, in the sum of $4,600, including an item of $200 for burial expense. At the hearing before the Industrial Commission held at Kenosha on March 9, 1934, it was stipulated: (1) That the Salvation Army was an employer subject to the Wisconsin Compensation Law on September 18, 1933; (2) that the relation of employer and employee existed at the time of the injury and death of said Alex Dubinski; (3) that the accident happened in Wisconsin. It is also conceded that at the time of the accident the Salvation Army had insured its liability under the Compensation Act with the Hartford Accident & Indemnity Company; that the annual average earnings of Alex Dubinski amount to the sum of $1,100; that at the time of the hearing before the Industrial Commission of Wisconsin no money had been paid under the award of the Industrial Commission of Illinois.

Appellants' counsel, by proper objection, raised the question as to the jurisdiction of the Industrial Commission of Wisconsin before taking any testimony. He contended that because of the proceedings had in the state of Illinois the matter had been adjudicated and determined, and that the Industrial Commission of Wisconsin was therefore without jurisdiction. The original copy of the award of the Industrial Commission of Illinois was offered and received in evidence. The examiner for the Industrial Commission of Wisconsin held that he had jurisdiction and following the hearing made findings and award as above indicated. A review was had before the Industrial Commission as a body resulting in an order confirming the findings and award as made by the chief examiner. Thereupon this action was brought in the circuit court for Dane county to set aside the findings, order, and award of the Wisconsin Industrial Commission. Judgment was entered by the trial court on March 1, 1935, confirming the order of the Industrial Commission. The following appears in the written opinion as filed by the trial court: “Counsel for all the parties herein admitted in open court, upon the hearing in this court, that a judgment was entered in Illinois on the Illinois award after the award was made by the defendant Industrial Commission of Wisconsin.” Upon the oral argument in this court, it was stated that the Illinois judgment based on the Illinois award had been paid and satisfied. This statement was not denied.

[1] The decisive issue here as to the jurisdiction of the Industrial Commission of Wisconsin was considered by this court in Interstate Power Co. v. Industrial Comm., 203 Wis. 466, 234 N. W. 889, 894, and in McKesson-Fuller-Morrisson Co. v. Industrial Comm., 212 Wis. 507, 250 N. W. 396, 398. In Interstate Power Co. v. Industrial Comm., supra, plaintiff's counsel there contended that the disposition made in that case by the Iowa Commission had the effect of a judgment to which the Wisconsin court was required to give full faith and credit under article 4, section 1, of the Constitution of the United States, which provides: “Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State.”

This court said: “It is contended by the appellant that the disposition of this case in Iowa has the force and effect of a judgment, to which this court must give full faith and credit. This might be a valid argument provided the Iowa court had any jurisdiction to effect proceedings under the Wisconsin act. We think it has not such jurisdiction. We concede the jurisdiction of the Iowa Commission to determine the rights of the parties under the Iowa act, and we claim the jurisdiction of the Wisconsin Commission to determine their rights under the Wisconsin act.”

The facts in Interstate Power Co. v. Industrial Comm., supra, are identical with the facts here. In that case the contract was entered into in Iowa. The employer was subject to the Iowa act and subject to the Wisconsin act. The employee was injured in Wisconsin and an award was granted employee in Iowa under the Iowa act, also an award granted in Wisconsin under the Wisconsin act. However, in the Interstate Power Company Case, the Wisconsin Commission credited the employer with all sums paid under the Iowa act, with reference to which this court said: “No complaint is made of this disposition of the case. While it is not necessary in this appeal to pass upon the validity of this procedure, we see no reason why payments made, whether voluntary or in accordance with the terms of the Compensation...