Vill. of Kiel v. Indus. Comm'n of Wis.

• Decision Date: 23 May 1916
• Citation: 163 Wis. 441,158 N.W. 68
• Parties: VILLAGE OF KIEL v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

163 Wis. 441

158 N.W. 68

VILLAGE OF KIEL

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

May 23, 1916.

Appeal from a Judgment of the Circuit Court for Dane County; E. Ray Stevens, Circuit Judge. Affirmed.

Action to set aside an award of the Industrial Commission.

Mary Hanske is the widow of Edmond Hanske, deceased. He was fatally injured while performing duties of night marshal of plaintiff. That occurred August 23, 1914, by reason of deceased attempting to prevent one Lettenberger from violating the speed laws of the state in plaintiff's streets, and to arrest him for such violation. The marshal and policemen were empowered by ordinance, among other things, to preserve the peace and good order in the village, and to arrest and remove from the streets all persons in any way found guilty of disorderly conduct. The village had no police force other than the marshal. He was selected by the village board to perform the duties of a policeman at night, under the name of night marshal, and to act as janitor of the city hall. The village board, pursuant to its authority to have a marshal and policemen, selected the deceased to do police duty, giving him the title of night marshal, and adding that of janitor because he was required to act as such. Contemplating such a selection, the board invited bids to perform the duties of the double place. The deceased responded, his bid was accepted, and he was selected by ballot. He filed an official bond and constitutional oath. He was performing the duties of his place when injured. After his decease, his widow duly made a claim against the village under the Workmen's Compensation Act for her loss. The Commission allowed her $2,640.00, besides bills for medical attendance and nurse hire, upon the ground that when Hanske was injured, he and the village were subject to the provisions of the Workmen's Compensation Law, and the injury happened while he was performing service growing out of and incidental to his employment. The Circuit Court confirmed the award and rendered judgment accordingly.

Nash & Nash, of Manitowoc, for appellant.

Winfield W. Gilman, Asst. Atty. Gen., and Byron H. Stebbins, of Madison, for respondents.

Michael Levin, of Milwaukee, amicus curiæ.

MARSHALL, J.

Counsel for appellant concede, as the fact is, that if the deceased was a policeman, within the meaning of the Workmen's Compensation Law, and appellant is liable if he was injured, while engaged, as such, in endeavoring to enforce a state law from which the village derived no special benefit in its corporate capacity, the judgment is right and should be affirmed. Therefore, counsel at the outset in their brief, say the only question it is desired to raise is whether a village marshal is a policeman within the meaning of such law, suggesting that such question really covers the two matters.

[1] Counsel's suggestion as to the scope of the single question is supported by West Salem v. Industrial Commission, 155 N. W. 929, where this court held that if a policeman is injured in performing a duty incident to his office, whether it is that of enforcing a municipal ordinance or of enforcing a penal law of the state, he is such official under section 2394--7 which provides that policemen shall be deemed employés within the meaning of subdivision (1) of such section. The one whose injury was the subject of that action was engaged, when injured, in the enforcement of a state law, and the point was made that there could be no recovery; but the court decided otherwise. The infirmity in the contention to the contrary is obvious. A policeman is deemed to be an employé, as we have seen, and section 2394--3 provides for...