Wandersee v. Moskewitz

• Decision Date: 05 March 1929
• Parties: WANDERSEE v. MOSKEWITZ ET AL.
• Court: Wisconsin Supreme Court

198 Wis. 345

223 N.W. 837

WANDERSEE

v.MOSKEWITZ ET AL.

Supreme Court of Wisconsin.

March 5, 1929.

Stevens, J., dissenting.

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

Proceeding under the Workmen's Compensation Act by Bernard F. Wandersee, opposed by Sam Moskewitz, alleged employer, and the Employers' Mutual Liability Insurance Company, insurance carrier. From a judgment of the circuit court reversing and remanding, with directions, an order of the Industrial Commission dismissing the application for lack of jurisdiction, alleged employer, insurance carrier, and Commission appeal. Reversed and remanded, with directions.--[By Editorial Staff.]

Bernard F. Wandersee made application to the Industrial Commission for an award of damages for personal injuries, under the Workmen's Compensation Act (St. § 102.01 et seq.) The Industrial Commission dismissed the application for lack of jurisdiction. Wandersee then commenced an action against Sam Moskewitz, Employers' Mutual Liability Insurance Company, and Industrial Commission of Wisconsin, in the circuit court for Dane county, to review the action of the Industrial Commission. That court held that the Industrial Commission had jurisdiction, reversed its order dismissing the application, and remanded the record to the Industrial Commission, with directions to proceed to hear and determine the rights of the applicant as provided by law. From that judgment the defendants appealed.John W. Reynolds, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., and Quarles, Spence & Quarles, of Milwaukee (Arthur B. Doe, and Kenneth P. Grubb, both of Milwaukee, of counsel), for appellants.

Thomson & Williams, of Minneapolis, Minn., and La Follette, Rogers & Roberts, of Madison (B. A. Mjelde, of Madison, of counsel), for respondent.

Richmond, Jackman, Wilkie & Toebaas, of Madison (W. L. Jackman, of Madison, of counsel), amici curiæ.

OWEN, J.

The defendant Sam Moskewitz is a resident of Chippewa Falls, Wis., and an employer under the Workmen's Compensation Act. (St. § 102.01 et seq.). Bernard F. Wandersee is, and at all of the times hereinafter mentioned was, a resident of Minneapolis, Minn. Some time in November, 1926, he entered into a contract with Moskewitz, at Chippewa Falls, to buy hides and furs for Moskewitz in Minnesota and part of South Dakota. He covered his territory with an automobile furnished by Moskewitz. On January 21, 1927, while driving between Janesville and Richmond, Minn., one of his feet was frozen. He made application to the Industrial Commission for compensation under the Workmen's Compensatin Act. The specific question here presented is whether our Workmen's Compensation Act applies to service rendered in another state pursuant to a contract made in this state; no services being rendered in this state under and pursuant to such contract.

This question has been before the courts of various states, but their conclusions are so lacking in uniformity, and so frequently based upon statutory provisions, that we find little help from such precedents, and, in view of the fact that our conclusion must rest upon a consideration of our own statute, a review of the authorities here would be a work of supererogation, which we shall not attempt.

Our Compensation Act applies to employers and employees. They are both defined in the act. It is conceded that the employer here is under the act. It is plain that the applicant never was an employee within the meaning of the act, and that he never was under the act. As applicable to his situation, section 102.07 (4) Stats., defines an employee as “Every person in the service of another under any contract of hire, express...