Opinion
October 16, 1942 —
November 10, 1942.
APPEAL from a judgment of the circuit court for Dane county: AUGUST C. HOPPMANN, Circuit Judge. Reversed.
For the appellants there was a brief by Varnum Peterson of Hudson, and Faegre Benson, Paul J. McGough, and Donald L. Robertson, all of Minneapolis, Minnesota, and oral argument by Mr. McGough.
For the respondent Industrial Commission there was a brief by the Attorney General and Mortimer Levitan, assistant attorney general, and oral argument by Mr. Levitan.
For the respondent Irving Paap there was a brief by Sanborn, Blake Aberg of Madison, and William C. Green and Robert J. Tyrrell, both of St. Paul, Minnesota, and oral argument by W. J. P. Aberg.
This action was begun on December 27, 1940, by the city of Hudson and its insurance carrier, Standard Accident Insurance Company, to review an award of the Industrial Commission dated December 3, 1940. The award was to the defendant Irving Paap. A. F. Peavey and W. T. Davis, who were alleged to be employers of Paap, and the Industrial Commission of Wisconsin were made defendants. The plaintiffs appeal from the judgment entered March 9, 1942, confirming the award.
The facts as found by the Industrial Commission somewhat abbreviated are as follows: The city of Hudson, a municipal corporation, owns and operates the interstate bridge extending from the city of Hudson across Lake St. Croix to the Minnesota shore. The Standard Accident Insurance Company is its insurance carrier. W. T. Davis is an individual engaged in the business of constructing, reconstructing, and repairing bridges, water towers, and other large steel structures. A. F. Peavey is an individual doing business under the name of Northwest Sandblast Company, engaged in the business of sandblasting. In June, 1939, Davis informed the mayor of the city of Hudson that the bridge in question was badly in need of repair. Negotiations were commenced, and on June 22, 1939, the city council by resolution authorized Davis to make repairs in accordance with his recommendation on a time and material basis. Davis was to furnish such equipment such as rivet guns, acetylene torches, welding machines, and air hose, at a stipulated price per day or per hour. He was to furnish certain labor including riveters, welders, bridge workmen, compressor operators, and welders' helpers at an agreed price per hour. Davis' crew consisted of seven or eight men, including the applicant Paap. In addition to his regular crew he employed some local labor. Under an arrangement with Davis, Peavey was to furnish certain trucks, sandblasting, and other equipment, and to furnish compensation and public-liability insurance, and was to receive one third of the net profits on the job for compensation. Paap was a foreman in the employ of Davis, and on June 27, 1939, while inspecting a rivet that had been driven by some of the workmen, the rivet gun accidentally discharged, striking him in the left eye with the resulting loss if the eye by enucleation. Paap received a wage of $60 per week, and at the time of his injury was forty years of age.
While Davis during the years 1937 and 1938 had carried compensation insurance on his Wisconsin operations, he had none at the time of the accident although he was subject to the act. The commission further found that Paap was in the employ of Davis and not in the employ of Peavey for the reason that Paap had not consented to a change of employment.
The commission further found that the respondent city of Hudson has owned the bridge in question for more than twenty years and charged a toll for all automobiles passing over the bridge; that tollkeepers regularly employed by the city, and from time to time city employees, have done maintenance and repair work on the bridge; that during the time at which applicant was employed the city had its own men constructing and repairing concrete abutments to the bridge; that the bridge has consistently been operated at a profit; that the net profit was used by the city to lighten the tax burden of the city and in making city improvements.
From these facts the examiner, whose decision was confirmed by the Industrial Commission, found that Davis was an employer subject to the provisions of the Workmen's Compensation Act; that he had not complied with sub. (2) of sec. 102.28, Stats. (relating to compensation insurance); that the applicant sustained injury while performing service growing out of an incidental to his employment; that the accident causing the injury arose out of the employment; —
"that the respondent, W. T. Davis, was a contractor under respondent, city of Hudson, at said time, and as to the work upon which applicant was engaged at the time of his injury; that both respondent, W. T. Davis, and the respondent, city of Hudson, and the insurer of the latter became liable to the applicant for payment of compensation."
Two questions are presented for decision: (1) Was W. T. Davis a contractor under respondent, city of Hudson, at the time of the accident? (2) Was A. F. Peavey an employer of Paap at the time of the accident and also liable for payment of compensation to Paap?
1. Sec. 102.06, Stats. 1939, provided:
"An employer shall be liable for compensation to an employee of a contractor or subcontractor under him who is not subject to this chapter, or who has not complied with the conditions of subsection (2) of section 102.28 in any case where such employer would have been liable for compensation if such employee had been working directly for him. . . ."
This part of the statute was given careful consideration in Madison Entertainment Corp. v. Industrial Comm. (1933) 211 Wis. 459, 248 N.W. 415, and the conclusion there arrived at was affirmed in Wells Coal Dock Co. v. Industrial Comm. (1937) 224 Wis. 546, 272 N.W. 480. As pointed out in these cases the word "contractor," as used in these sections of the statutes, must be given a restricted meaning; that it was intended to and does apply only to those situations where a principal enters into a contract to have some part of the work ordinarily and customarily done by him done by a contractor. An intolerable situation would be created if the section were to include the employees of every person or corporation employed to do a piece of specialized work not ordinarily and customarily done by the employer. If the statutes were so construed one could never know who his employees were and therefore he could not protect himself by compensation insurance. The question we have here therefore is, Were the operations to be performed by Davis pursuant to his contract, in the performance of which he called to his assistance Peavey, work ordinarily and customarily done by the city of Hudson?
On behalf of the respondents it is argued that the application of this test is dependent upon findings of fact; that the commission found —
"That tollkeepers are regularly employed by the city and from time to time city employees have done maintenance and repair work on the bridge; that during the time the work at which applicant was employed was being performed, the city had a crew of its own men at work constructing and repairing concrete abutments to the bridge" —
which finding is conclusive upon the court. It is to be noted that neither the examiner nor the commission made a finding with respect to whether the work being done by Davis and Peavey was a part of the work ordinarily and customarily performed by the city of Hudson. If the finding had been made there is no evidence which would support it. The commission seemed to be of the view that because the bridge was operated at a profit, and the city maintained a crew to make some repairs, that that was decisive of the question of the city's liability. The fact that the city, at the time that Davis and Peavey were performing their work upon the bridge, was engaged in carrying on its customary and usual operations is not decisive of the question.
It is not claimed that the city of Hudson was equipped with rivet guns, acetylene torches, compressors, sandblasting equipment, or welding machines, which equipment was necessary to the performance of the contract, or that it had in its employ riveters, welders, compressor operators, or welders' helpers. Certainly work of the kind performed by Davis and Peavey was not work ordinarily and customarily performed by the city of Hudson in the course of operating and maintaining the bridge. No doubt the Wells Coal Dock Co. Case, supra, made repairs to some parts of its equipment, but it was not equipped to repair a boiler nor did it customarily repair boilers. The repair of a boiler was a specialized piece of work which could be done only by those who were skilled in that work. The city might have rented rivet guns and other equipment and might have employed riveters, welders, and others specially trained for work of the kind being done by Davis and Peavey but it did not do so. It contracted with Davis for the performance of the work for which it was not equipped and did not ordinarily and customarily perform. While it had an inspector upon the job, his duty was merely to see that the work was done in a proper and workmanlike manner in accordance with the contract. See Employers Mut. L. Ins. Co. v. Industrial Comm. (1937) 224 Wis. 527, 272 N.W. 481. The cleaning of the bridge by sandblasting, which was necessary, and the repair of the bridge were a part of the one operation. It is considered that there being no finding that the work being done was such as was usually and customarily done by the plaintiff as a part of the operation and maintenance of the bridge, the court is not concluded by the finding of the commission; that upon the undisputed evidence it clearly appears that Davis and Peavey were performing a specialized piece of work not ordinarily and customarily performed by the city for itself; that neither Davis nor Peavey or Davis and Peavey were contractors under the city of Hudson within the meaning of the statute.
2. The commission found that Paap, who had been an employee of Davis for many years, was not an employee of Peavey. Whether or not Paap consented to become an employee of Davis and Peavey instead of Davis presented a pure question of fact, and the finding of the commission upon that question is conclusive. Without attempting to analyze the exact relationship between Davis and Peavey with respect to the performance of the contract, it is clear that Davis could not by his agreement with Peavey, not consented to or approved by Paap, bind Paap. Paap had been an employee of Davis. He was paid by Davis or from funds furnished by Davis. He looked to Davis as his employer throughout the operation. Davis furnished him hospital treatment and gave to him certain sums of money. From all of these facts the commission might well arrive at the conclusion that there was never an intention to change the relationship which existed between Davis and Paap, which was that of employer and employee.
By the Court. — The judgment appealed from is reversed, and cause remanded with directions to the trial court to enter judgment setting aside the award against the plaintiff city of Hudson. In other respects the judgment of the trial court is affirmed. Plaintiff to recover its costs against Paap.