Wendlandt v. Industrial Commission

• Decision Date: 15 November 1949
• Citation: 39 N.W.2d 854,256 Wis. 62
• Parties: WENDLANDT et al. v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

Page 854

39 N.W.2d 854

256 Wis. 62

WENDLANDT et al. v. INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

Nov. 15, 1949.

Thomas E. Fairchild, Atty. Cen., Mortimer Levitan, Asst. Atty. Gen., William J. Conway, Jr., Wisconsin Rapids, for appellants.

Quarles, Spence & Quarles, Milwaukee (Kenneth P. Grubb, Richard S. Gibbs, Milwaukee, of counsel), for respondents.

FAIRCHILD, Justice.

The respondent Wendlandt is the owner and operator of the Marshfield Golf Club. He did not hire, pay, or regulate the fees of caddies. He knew that players used caddies and that boys were on the course seeking employment as caddies from patrons, who paid the caddy for his services. When the appellant Melcher acted as a caddy, he was never paid except by the person for whom he caddied. Apparently the only conversations he had with respondent were to the effect that he was told he would have to get a labor permit if he wanted to caddy. Nothing of the kind was procured, but appellant did hand respondent a letter signed by his parents saying that he could caddy. Appellant was injured while engaged as a caddy for a patron of the course. He applied for workmen's compensation as an employe of the respondent as provided in sec. 102.07(5), Stats.1941: 'Any person on a golf course for the purpose of caddying for or while caddying for a person permitted to play golf on such course shall be deemed an employe of the golf club or other person, partnership, association, corporation, including the state and any municipal corporation or other political subdivision thereof, operating such golf course.'

On these facts the Industrial Commission found that respondent had 'actual knowledge' that Melcher engaged himself as a caddy on his golf course and 'constructive knowledge' that he was caddying at the time of his injury. It awarded $6,300.00 for thirty per cent permanent total disability plus double compensation because Melcher was a minor working without a permit.

Upon review in the circuit court the Industrial Commission contended that the operator of a golf course having a compensation insurance policy could not attack the constitutionality of sec. 102.07(5), Stats.1941. The court, however, held that the respondent was not estopped from challenging the validity of the statute and that the statute in question was not constitutional.

There is no doubt that, as a general principle, one may not enjoy the benefits and privileges of a statute and, after so doing, escape its burdens by attacking its validity. Gagnon v. Department of Agriculture and Markets, 1939, 232 Wis. 259, 286 N.W. 549. Manifestly, there is justice and reason in a rule which prevents one from accepting the advantageous terms of a statute while attempting to avoid as unconstitutional the unfavorable ones. But the doctrine is not extended to all the details of the law under which benefits have been taken. 11 Am.Jur., 770; 16 C.J.S., Constitutional Law, § 89, page 186. Therefore, while one engaged in a 'regulated' business must comply with certain requirements in order to accept its benefits, this does not mean he is bound by statutory provisions fixing on him burdens which are far removed from the obligations growing out of his enterprise. Furthermore, the respondent does not seek to defeat the statute and at the same time retain an advantage by virtue of any of its provisions. His position is that he does not stand in the relation of employer to the appellant and that the effort of the legislature in that respect is misspent.

The difference between the statute in existence at the time Booth Fisheries Co. v. Industrial Commission, 1924, 185 Wis. 127, 200 N.W. 775, was decided and this case may be pointed out as modifying the proposition of voluntary waiver. At the time of the Booth Fisheries case, supra, the compensation act provided the employers with an alternative: they could come under the provisions of the act or they could give up their common law defense of contributory negligence and remain outside. Today, if an employer has a certain number of employes, he automatically comes under the act.

A waiver of a constitutional right to be effective must be a voluntary act by the individual. The compensation act does not now stand as one under which an employer may or may not act. It is a mandatory act, not one where the obligations are voluntarily assumed.

Furthermore, in order to prevent respondent from challenging the constitutionality of the act under consideration, it must be made to appear that he did act thereunder so as to be estopped from setting up his claim of a violation of his rights. The suggestion that as an employer he undertook by insurance to protect himself against any liability for which he was legally responsible is not sufficient to make him liable for something not legally chargeable to him. Respondent has not done anything which may legally be held to be an inducement to appellant to enter the services in which he was engaged when injured.

Therefore, respondent cannot be held to have elected to waive his right to object to the constitutionality of the section amending the act.

The point is attempted to be made that respondent did not make a timely challenge of the constitutionality of the act. Constitutional rights of a citizen are not to be lightly regarded. Those rights were acquired at too great a cost and their value to our democracy is too important to be left to chance or to depend upon some non-essential technicality....