Vilas Cnty. v. Monk

• Decision Date: 07 January 1930
• Citation: 200 Wis. 451,228 N.W. 591
• Parties: VILAS COUNTY ET AL. v. MONK ET AL.
• Court: Wisconsin Supreme Court

200 Wis. 451

228 N.W. 591

VILAS COUNTY ET AL.

v.MONK ET AL.

Supreme Court of Wisconsin.

Jan. 7, 1930.

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

Action by Vilas County and Norwich Union Indemnity Company, plaintiffs, commenced March 4, 1928, against Elmer Monk and Industrial Commission of Wisconsin, defendants, to review an award of the Industrial Commission. From a judgment in favor of the defendants, entered on the 31st day of May, 1929, the plaintiffs appeal.James E. Coleman, of Milwaukee, and Derham & Derham, of Iron Mountain, Mich., for appellants.

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

OWEN, J.

Elmer Monk, while acting as a member of a posse comitatus organized to accomplish the arrest of Jerry Brandenberg and William Stanley, in Vilas county, sustained injuries in the nature of a gunshot wound, and made application to the Industrial Commission for compensation under the provisions of the Workmen's Compensation Act. This action is brought to set aside the award made to said Elmer Monk. The principal reason urged in that behalf is that said Elmer Monk was not lawfully a member of said posse, in that he was neither requested nor deputized by the sheriff to assist in accomplishing the arrest of the fugitives.

The wounding of Monk was a sequel to the murder of George Rutherford, the circumstances of which are detailed in Town of Presque Isle v. Rutherford, 228 N. W. 589, decided herewith. It appears that Boring, who shot George Rutherford, was arrested by the deputy sheriff Oscar Knabe and taken to the village of Winegar. When arrested, Boring denied shooting Rutherford, and told the deputy sheriff that George Rutherford was shot by two other persons; namely, Jerry Brandenberg and William Stanley. The populace of the village of Winegar manifested a hostile attitude towards Boring, and the deputy sheriff deemed it wise to proceed with Boring to the county jail at Eagle River. Before proceeding to Eagle River, however, he informed the citizens of Winegar of the charge made by Boring against Brandenberg and Stanley. He called upon Weston McKenzie and Harry Rutherford, citizens of Winegar, to search for Stanley and Brandenberg, take them into custody, getting others to assist them if necessary. Harry Rutherford, one of the persons called upon by the deputy sheriff, met Elmer Monk and asked him if he would accompany them (Rutherford and others) in search for Brandenberg and Stanley. Monk assented, and was given a gun. He was not sworn in, nor was any statement made that he was being deputized or directed to go. During the search,...