Weighing v. Indus. Comm'n of Wis.

• Decision Date: 07 November 1933
• Citation: 250 N.W. 834,212 Wis. 641
• Parties: WESTERN WEIGHING & INSPECTION BUREAU ET AL. v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

212 Wis. 641

250 N.W. 834

WESTERN WEIGHING & INSPECTION BUREAU ET AL.

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

Nov. 7, 1933.

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

Action by the Western Weighing & Inspection Bureau and the Southern Surety Company of New York against the Industrial Commission of Wisconsin and John J. Cronin to review an award of compensation in favor of defendant Cronin. From a judgment confirming the award, plaintiffs appeal.--[By Editorial Staff.]

Reversed, with directions.

This action was commenced May 7, 1932, to review an award of the Industrial Commission dated April 11, 1932. The applicant John J. Cronin was injured on July 3, 1928, while performing services either for the plaintiff or the Chicago, Milwaukee, St. Paul & Pacific Railroad Company. The commission found Cronin's injury was sustained while he was employed by the plaintiff and performing service growing out of and incidental to such employment. Compensation was awarded accordingly. From a judgment entered on April 1, 1933, confirming the award of the commission, the plaintiffs appealed.Bender, Trump, McIntyre & Freeman, of Milwaukee (Rodger M. Trump and Ronold A. Drechsler, both of Milwaukee, of counsel), for appellants.

James E. Finnegan, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondents.

NELSON, Justice.

[1] The commission found “that at the time of applicant's injury he was employed by the Western Weighing and Inspection Bureau and sustained his injury while performing service growing out of and incidental to his employment by such employer.” The facts are not in dispute. The finding of the commission, though denominated a finding of fact, was a mere conclusion of law. Under the rule stated in Weyauwega v. Industrial Commission, 180 Wis. 168, 192 N. W. 452, and Tesch v. Industrial Commission, 200 Wis. 616, 229 N. W. 194, we are permitted to examine the undisputed facts for the purpose of determining whether the commission's conclusion is sound.

[2] The plaintiff bureau is an association whose members are various railroads. It was organized in 1887. It has charge of certain branches of railroad work such as weighing cars, inspection of freight for correct classification purposes, etc. It was organized because it was thought that the particular work intrusted to it could be more cheaply and efficiently performed by it than by the various railroads acting individually. The plaintiff bureau employs weighmasters in various railroad centers whose principal duty is to weigh loaded cars. Prior to 1917 the weighing of carloads at Janesville was done by various men employed by the Milwaukee Railroad. Some difficulties arose out of that system. Arrangements were made by the plaintiff with the railroad whereby the former was to employ weighmasters at Janesville, carry them on the plaintiff's pay roll, and charge all of their salaries against the railroad. Just what the agreement was does not clearly appear, but ever since such arrangement was made the wages of the weighmasters at Janesville have been paid by the plaintiff but wholly charged back to the railroad. The weighmasters were evidently employed to do the plaintiff's work and also to work for the railroad, since the weighing of cars at Janesville required only a small part of the weighmaster's time. While not engaged in weighing cars the weighmasters were subject to the orders of the railroad and required to perform its work. In 1917 Cronin applied to Mr. Johnson, an employee of the plaintiff, in charge of the Janesville district, for the position of weighmaster at Janesville. He went to see Mr. Johnson at his house a day or two before he started to work. He was told that he would have to do the weighing of the cars and would have to take orders from the railroad's yardmaster, superintendent, agent, or anybody else that telephoned from the depot. That was the way that the work was outlined to him. Cronin thereafter started to work on October 4, 1917, and continued in such employment until injured July 3, 1928. His wages were paid by the plaintiff bureau twice a month and charged to the railroad. At the time the applicant was injured he was engaged in the performance of railroad work. He had been sent on an errand relating to the operation of the railroad. While going from his office to a point in the yard he climbed over the bumpers of certain cars standing on a track in front of his office; the cars were jolted in some manner and as a result he was thrown to the ground and injured.

The commission found that Cronin was, at the time of his injury, in the employ of the plaintiff bureau. Both the commission and the trial court were of the opinion that this case is ruled by Rhinelander Paper Company v. Industrial Commission, 206 Wis. 215, 239 N. W. 412. That case dealt specifically with the question whether the applicant therein was the employee of the paper company, the general employer, or the American Engineering Company, asserted to be the employer of a loaned employee. The Industrial Commission found that the applicant who had been employed by the paper company for a number of years was, at the time of his injury, assisting an employee of the American Engineering Company “for a few minutes in connection with ascertaining the difficulty in starting...