Sentinel News Co. v. Indus. Comm'n

• Decision Date: 09 February 1937
• Citation: 271 N.W. 413,224 Wis. 355
• Parties: SENTINEL NEWS CO. et al. v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

224 Wis. 355

271 N.W. 413

SENTINEL NEWS CO. et al.

v.INDUSTRIAL COMMISSION et al.^*

Supreme Court of Wisconsin.

Feb. 9, 1937.

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

Reversed.

For dissenting opinion, see 273 N.W. 819.

WICKHEM, J., dissenting.

This action was begun by the Sentinel News Company and its insurance carrier, Bankers Indemnity Insurance Company, plaintiffs, on September 25, 1935, against the Industrial Commission of Wisconsin and Justine Van Ermine, defendants, to review an award of the Industrial Commission. Upon the trial the court affirmed the award, and from the judgment entered accordingly on July 2, 1936, plaintiffs appeal.

The Sentinel News Company is a corporation engaged, among other things, in distributing the Milwaukee Sentinel and the Wisconsin News. In Brown county, Sam Moglowsky was exclusive distributor of these papers. He paid the Sentinel News Company 1 5/8 cents for every daily paper which he bought from it and 7 cents for every Sunday paper which he bought from it. He in turn sold the papers purchased by him to newsboys and distributors for 2 1/8 cents for daily papers and 8 cents for Sunday papers, the difference being his profit. At the end of each week the news company would bill Moglowsky for the papers shipped to him that week. He would deduct from that bill the number of unsold papers called “returns” and pay the Sentinel News Company the difference. He was under no written contract, the arrangement between him and the company being made by one Hoffman who resides in Milwaukee and is connected with the circulation department of the Sentinel News Company. Moglowsky employed his own newsboys. He could establish as many news depots or subdealers as he saw fit. All of the expenses connected with the distribution and sale were paid by him. He owned all of the equipment used in the business.

Wilbur Van Ark, son of Justine Van Ermine, was one of the boys employed by Moglowsky. While driving Moglowsky's car on January 8, 1933, Van Ark was killed in an automobile collision. On September 27, 1934, an application for workman's compensation was filed on behalf of the mother against Sam Moglowsky. On December 27, 1934, a hearing was held upon this application. The defendant Moglowsky appeared in person. At the close of the hearing counsel for the appellant made the following statement:

“We are amending the application to make the Sentinel Company a party. It appears from the evidence here that the Sentinel company is a material party and I ask to amend the application.”

Upon a memorandum sheet kept apparently by the examiner appears the following: “After taking testimony of resp. adversely, Mr. Tarrell (representing appellant) asked that app. be served on Sentinel News Co. to make them a party and also their Ins. Co.”

If the request to amend be regarded as a motion, no action was taken upon it by the examiner. No amended application was in fact filed. Upon the original application for adjustment of the claim there is written in “Sentinel News 1/9/35 Bankers Ind. Co. 1/9/35 M. F.,” apparently a memorandum of the date upon which the notices were mailed. Notice of a hearing entitled “In re Justine Van Ark, mother of Wilbur Van Ark, deceased, v. Sam Moglowsky, Sentinel News Company and Bankers Indemnity Company” was served upon the defendants Sentinel News Company and Bankers Indemnity Company on January 9, 1935, that being the day of the date of the notice.

The appealing defendants answered, made certain denials, and further alleged: “Objects to the jurisdiction of the Industrial Commission because it appears from the application that the injury was sustained on January 8, 1933, and the notice from the Industrial Commission addressed to the Sentinel News Company was dated January 9th, 1935. That the statute of limitations has run against the claims against these answering defendants.”

The examiners were of the view that the claim was barred, whereupon the applicant asked for a review by the Industrial Commission. There was a review. The commission was of the view that “subsection (1) of section 102.17 Stats., provides that upon the filing with the commission by any party in interest of any application in writing stating the general nature of any claim as to which any dispute or controversy may have arisen, and shall mail a copy of such application to all other parties in interest, and the insurance carrier shall be deemed a party in interest. It also provides that the commission may bring in additional parties by service of a copy of application. There is no provision that service of copy of application upon such additional parties shall be made by the commission within a fixed period.”

“Section 102.12 provides ‘that if application is not filed with the commission within two years from the date of the injury or death *** the right to compensation shall be barred’. In this case an application in writing was filed within two years from the date of injury and of death. There was further formal application made for joinder of additional parties within the two-year period. The request for such joinder was made a matter of record by the commission. The commission believes that in conjunction with the prior filing of written application the requirements of the statutes have been fully satisfied, both from the standpoint of the filing of application within two years and from the standpoint of the bringing in of additional parties by service of copy of the application by the commission as required by subsection (1) of section 102.17, statutes.”

The commission therefore set aside the findings of the examiners and awarded compensation.

Harry V. Meissner, of Milwaukee, for appellants.

Orland S. Loomis, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondent Industrial Commission.

L. A. Tarrell, of Milwaukee, for respondent Justine Van Ermine.

ROSENBERRY, Chief Justice.

Section 102.12, Wis. Stats., provides:

“Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made, and no application filed with the commission within two years from the date of the injury or death, or from the date the employe or his dependent knew or ought to have known the nature of the disability and its relation to the employment, the right to compensation therefor shall be barred.”

Section 102.17 (1) (a) provide...