Wis. Bridge & Iron Co. v. Indus. Comm'n

• Decision Date: 22 June 1936
• Citation: 268 N.W. 134,222 Wis. 194
• Parties: WISCONSIN BRIDGE & IRON CO. v. INDUSTRIAL COMMISSION ET AL.
• Court: Wisconsin Supreme Court

222 Wis. 194

268 N.W. 134

WISCONSIN BRIDGE & IRON CO.

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

June 22, 1936.

Appeal from a judgment of the Circuit Court for Dane County; A. G. Zimmerman, Judge.

Affirmed.

Action by Wisconsin Bridge & Iron Company against the Industrial Commission and another to vacate an award of the Commission under the Workmen's Compensation Act. From the judgment of the circuit court confirming the award of the Commission entered December 23, 1935, the plaintiff appeals. The facts are stated in the opinion.Mason, Priestley & Burke, of Madison, for appellant.

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

FOWLER, Justice.

This is a workmen's compensation case. Parents of a deceased employee of the plaintiff applied for death benefits on the ground of dependency, and their petition was granted.

[1][2] The appellant's main contention is that the conclusion of the commission that the employer and employee were subject to the Wisconsin Compensation Act (St.1931, § 102.01 et seq.) is one of law not supported by the facts found by the commission or shown by the evidence. The appellant is correct in its contention that the conclusion of the commission in the respect stated is subject to review. Tesch v. Industrial Commission, 200 Wis. 616, 229 N.W. 194. But the findings of fact made by the commission are supported by the evidence, and the facts found support the conclusion reached. The employer and employee were both residents of Wisconsin, and the employee was killed while at work in Louisiana pursuant to his contract. His contract of employment was made in this state. This brings him within the rule of Val Blatz Brewing Co. v. Industrial Commission, 201 Wis. 474, 230 N.W. 622, and Jutton-Kelly Co. v. Industrial Commission (Wis.) 264 N.W. 630. These facts alone justify the conclusion that the employer and employee were subject to the act. The commission was also of the view that the deceased employee had the status of an employee whose employment had not terminated, but continued although temporarily not at work for want of work for him to do, under the rule of Wisconsin Granite Co. v. Industrial Commission, 214 Wis. 328, 252 N.W. 155, but this point we do not consider.

The evidentiary facts, besides those above stated, supporting the conclusion that the contract of employment pursuant to which the deceased was engaged when killed, was made in Wisconsin, are as follows: The company had a superintendent on a job in Louisiana who had the power to hire employees needed for the job and to discharge them. The deceased employee had been employed by the company for many years when it had jobs for him to work upon. He was free to work for others when not working for the company, and free to work or not work for the company. The company was a Wisconsin corporation and had its principal office in Milwaukee. The superintendent on the Louisiana job sent word to the Milwaukee office that he wanted the deceased on the job. The Milwaukee office telegraphed the deceased at his residence in Appleton to report at the Milwaukee office. He so reported, and was directed at the office to go to Paducah, Ky., to get some company tools there and take them on to the Louisiana job, where the superintendent of the job wanted him. He was engaged at Paducah for a few days, and then took the tools to New Orleans, where the Louisiana job was in progress. The company reimbursed him his fare on these trips, and his pay began the day after he left Milwaukee. There is evidence to support the inference that, had the superintendent on the job not wanted him, he would have put him to work on his being sent by the Milwaukee office to Louisiana to work on it. We consider that all this supports the inference that the contract of employment was made in...