Zurich Gen. Accident & Liab. Ins. Co. v. Bowers

• Decision Date: 09 March 1920
• Citation: 176 N.W. 772,171 Wis. 116
• Court: Wisconsin Supreme Court
• Parties: ZURICH GENERAL ACCIDENT & LIABILITY INS. CO. v. BOWERS ET AL.

171 Wis. 116

176 N.W. 772

ZURICH GENERAL ACCIDENT & LIABILITY INS. CO.

v.BOWERS ET AL.

Supreme Court of Wisconsin.

March 9, 1920.

Appeal from Circuit Court, Milwaukee County; Gustave G. Gehrz, Judge.

Action by the Zurich General Accident & Liability Insurance Company against Arthur F. Bowers and another. Judgment for defendant, and plaintiff appeals. Affirmed.

This action was brought by plaintiff against defendants to recover the sum of $10,000 for alleged negligence. The complaint alleges that the defendants were engaged in the business of steam fitting in the city of Milwaukee, doing business under the name of the Industrial Heating & Engineering Company; that on June 21, 1917, they were engaged in work for the American Malting Company of the same city, moving steam coils for the purpose of putting in a new foundation; that the servants of defendants while engaged in this task called for a helper from the American Malting Company, and one Valentine Jank was sent by his employer to assist the servants of defendants in their work; that this Valentine Jank received his instructions from a vice principal of defendants, George A. Gerlach, who failed to instruct Jank properly of the dangers incident to the work at hand; that Gerlach negligently caused the coils to slip and fall onto Jank through his negligent manner of applying the pinch bar to move the coil on the I-beam on which it rested and on which it was being moved; that Jank was struck and killed by one of the coils which defendants' servants and Jank were moving.

The complaint further alleges that Alma Jank, widow of the deceased, presented a claim for compensation under sections 2394--3 to 2394--31. The claim was assigned to the American Malting Company, and from it to the Zurich General Accident & Liability Insurance Company. Defendants' answer denied that George A. Gerlach, at the time of the injury to Jank, was the employé or vice principal of the defendants, and alleges that Gerlach, with an assistant or helper, was at the time of the injuries to Jank hired by the American Malting Company from the defendants by the hour to do such work and perform it in such manner as the American Malting Company might direct. The defendants deny any negligence of Gerlach or their employés or agents which caused the death of Jank. The answer also sets forth the assumption of risk as a defense.

At the close of the trial defendants moved the court to instruct the jury to return a verdict for the defendant. This motion was granted, and judgment entered accordingly. Appeal is taken from such judgment.Joseph B. Doe and Walter L. Gold, both of Milwaukee, for appellant.

Edward W. Spencer, of Milwaukee, for respondents.

SIEBECKER, J. (after stating the facts as above).

The evidence is clear that the defendants were conducting a business of industrial heating and engineering, and that at the request of the American Malting Company they sent Gerlach, one of their employés, to repair the foundation of some steam coils at the malting company's plant. The facts show that this repair work was undertaken by defendants, and that their agents and employés had full charge of the work, and that Gerlach as their employé had control thereof for defendants. The...