Opinion
November 29, 1962 —
January 8, 1963.
APPEAL from a judgment of the circuit court for Dane county: NORRIS E. MALONEY, Circuit Judge. Affirmed.
For the appellants there was a brief by Kluwin, Dunphy, Hankin Hayes of Milwaukee, and oral argument by John A. Kluwin.
For the respondent Industrial Commission the cause was argued by Beatrice Lampert, assistant attorney general, with whom on the brief was John W. Reynolds, attorney general.
On July 27, 1960, while alone at the plant of Harry Crow Son, Inc., a ready-mix concrete firm in Kenosha, Norbert Crow, the fourteen-year-old son of the respondents in this action, Gordon and Hazel Crow, was crushed to death by one of the corporation's tractors.
Norbert's father, Gordon Crow, was the vice-president of the corporation and manager of the plant. One other son, Richard, was employed there.
The accident occurred during the boy's summer vacation from school. He had usually attended boy's camp, but during the summer in question remained home to work at the plant and also to continue with his paper route (for which latter work he had a work permit). His work around the plant consisted of answering the telephone, weighing materials to be used for mixing, and at times loading the materials on trucks. Norbert did not have a work permit, but he did work six hours a day, six days a week at the plant. He was not carried on the company's payroll nor was there a social security contribution made for him. He was paid between $5 and $8 per week by his father who did not in turn receive reimbursement from the company.
On the day previous to the fatal accident, Norbert was with his father on a job until 9 p.m. The next morning Gordon Crow called Norbert at home and told him to come over and watch the plant while he and Richard went on another job. It was during the father's absence that the accident occurred.
Gordon Crow testified that payment made by him to his son Norbert was not voluntary. He stated that if Norbert was not available at the plant, he would have had to hire another man at the union scale of $2.82 an hour. He further testified that his financial dealings with the corporation were quite casual and on occasion he would expend money without receiving reimbursement.
After a hearing before the Industrial Commission of Wisconsin, Arthur N. Lund, examiner, made the following findings:
"Findings of Fact. That as of August 27, 1960; the deceased was requested by his father to perform certain duties at the respondent's ready-mix plant and that the deceased attempted to perform such duties; that while in the course of his employment he met with a fatal accident when he was run over by a tractor; that in view of the uncertainty of the hours and wages paid to the applicant by the respondent through his father who acted as general manager for the respondent the commission considers that the applicable weekly wage to be used in this case is the wage normally applicable to construction workers generally which would be in excess of the maximum amount used for workmen's compensation; that the applicant sustained the fatal injury on July 27, 1960, while performing service growing out of and incidental to his employment, and that the accident causing the fatal injury arose out of his employment; that at the time of the fatal accident the applicant resided with his father, Gordon Crow, and his mother, Mrs. Gordon Crow, and that he was not estranged from his parents; that the parents are entitled under sec. 102.48 as partially dependent individuals to the amount of $2,000 as a death benefit specified in sec. 102.48 of the Wisconsin statutes; that a funeral expense of $350 is payable under sec. 102.50."
He ordered the payment to the parents of the death benefits of $2,000 plus $350 burial expenses.
On a petition for review before the Industrial Commission as a body, the commission, without memorandum, adopted the findings of the examiner and further ordered:
"That there be added to the findings of the examiner the following:
"That the maximum weekly wage shall apply in computing the amount of death benefits pursuant to the provisions of 102.11(1) (g), since the deceased was fourteen years of age at the time of his injury; that on the date of his fatal injury deceased was specifically requested to appear at the respondent's place of business and to perform service; that if the deceased had not performed such service it would have been necessary to obtain someone else; that the deceased was an employee of the respondent; that as so modified the findings and order of the examiner are hereby affirmed."
Appellants brought an action in Dane county circuit court, and from the judgment affirming the order of the Industrial Commission appellants now appeal.
The sole issue to be determined on this appeal is whether Norbert Crow was, as the Industrial Commission expressly found, an employee under sec. 102.07(4), Stats., of Harry Crow Son, Inc., at the time of the accident.
"102.07 EMPLOYEE DEFINED. (4) Every person in the service another under any contract of hire, express or implied, all helpers and assistants of employees, whether paid by the employer or employee, if employed with the knowledge, actual or constructive, of the employer, including minors (who shall have the same power contracting as adult employees), but not including (a) domestic servants, (b) any person whose employment is not in the course of a trade, business, profession, or occupation of his employer, unless as to any of said classes, such employer has elected to include them. Item (b) shall not operate to exclude an employee whose employment is in the course of any trade, business, profession, or occupation of his employer, however casual, unusual, desultory, or isolated any such trade, business, profession, or occupation may be." (Emphasis ours.)
Although we have held that the ultimate determination of employer-employee relationship under the Wisconsin Workmen's Compensation Act is a question of law, there are questions of fact for the commission where there is room for dispute either as to facts or as to the inferences to be drawn from the facts.
Gant v. Industrial Comm. (1953), 263 Wis. 64, 69, 70, 56 N.W.2d 525; Enderby v. Industrial Corem. (1960), 12 Wis.2d 91, 106 N.W.2d 315.
In the instant case the crucial questions on the issue of whether the deceased was an employee are questions of law, to wit: (1) Whether an unemancipated minor can be an employee under sec. 102.07(4), Stats., and (2) whether the lack of a labor permit affects the status of the deceased as an employee under sec. 102.07(4). The record amply supports a determination that the corporation employer had the control of the details of the work done by the deceased. The fact that there was not an agreed wage rate nor a definite term of employment does not mean there can be no employment relationship. The service undertaken by the deceased was of benefit to the corporation and was not in violation of any instruction to the contrary.
St. Mary's Congregation v. Industrial Comm. (1953), 265 Wis. 525, 62 N.W.2d 19; see also Scholz v. Industrial Comm. (1954), 267 Wis. 31, 64 N.W.2d 204; Employers Mut. Liability Ins. Co. v. Industrial Comm. (1939), 230 Wis. 670, 284 N.W. 548.
Northern Trust Co. v. Industrial Comm. (1939), 231 Wis. 133, 140, 285 N.W. 339.
Anderson v. Industrial Comm. (1947), 250 Wis. 330, 333, 27 N.W.2d 499.
Appellants contend that the deceased was a minor and unemancipated son of Gordon Crow, the vice-president and general manager of the ready-mix family corporation, and that the son could not be an "employee" under any provision of the Wisconsin Workmen's Compensation Act. They rely on Prelipp v. Prelipp (1931), 203 Wis. 488, 234 N.W. 730, which is wholly inapplicable since it treats of the question of emancipation of a minor under common law and not under the terms of sec. 102.07(4) of the act. It is immaterial under sec. 102.07(4), Stats., whether a minor is emancipated, since sec. 102.07(4) specifically provides that minors shall have the same power of contracting as adults. The pertinent question is not whether the minor son has been emancipated but whether there is an agreement of employment within the meaning of the act
Curt v. Industrial Comm. (1937), 226 Wis. 16, 19, 275 N.W. 447.
The trial court traced the history of sec. 102.07(4), Stats. and stated:
"Ch. 624, Laws of 1917, added to the definition of an employee the following underscored words: `. . . also including minors of permit age or over (who, for the purposes of sec. 2394-8, shall be considered the same and shall have the same power of contracting as adult employees), . . . .' Ch. 453, Laws of 1929, further amended sec. 102.07(4) by striking the words `of permit age or over,' leaving minors with the same power to contract as adults. Curt v. Industrial Comm. (1937), 226 Wis. 16, 19, 275 N.W. 447."
The second contention of appellants is that since the particular employment here was of a nature requiring a work permit for a minor, and since no permit was applied for or issued here then the employment of deceased would be illegal and hence Norbert could not be held to be an employee.
In Thomas v. Industrial Comm. (1943), 243 Wis. 231, 10 N.W.2d 206, a minor was held to be an employee even though he did not have a work permit.
That the lack of a work permit here does not destroy the deceased's status as an employee is further emphasized by the fact that sec. 102.60, Stats., specifically prescribes that the effect of illegal employment of a minor without a permit in permitted work may result in double benefits, while working without a permit in prohibited work may result in triple benefits.
Appellants' last contention is that public policy requires a reversal. But workmen's compensation is wholly statutory and questions on what should be the public policy concerning it are determined by the legislature. The public policy here has been expressed by the legislature under the provisions of sec. 102.07(4), Stats., which specifically contemplate that a child serving an industry should have the benefits of the act, and the provisions of sec. 102.51(7), which specifically provide for recovery by a parent where death comes in an industrial accident to his minor child whom he employs. It is the clearly expressed public policy of the Workmen's Compensation Act that if industry utilizes the services of minors, industry should shoulder the burden of compensation benefits in the event of their injury.
Julien v. Model Bldg., Loan Investment Asso. (1902), 116 Wis. 79, 92 N.W. 561, where the court states, at page 91: "Statutes are not tested by any rule of public policy. We look to the statutes as well as the unwritten law to determine what is and what is not public policy, and then we test acts inter partes by the result. If such acts are not directly the subject of legislation, we say they are contrary to public policy. When we leave constitutional limitations out of view, the will of the legislative branch of the government, when expressed, is the highest evidence of public policy. To judicially condemn its expressed will, when exercised within constitutional limitations, would be the plainest kind of usurpation."
Also see Borgnis v. Falk Co. (1911), 147 Wis. 327, 133 N.W. 209 (the decision upholding the Wisconsin Workmen's Compensation Act), where the court states, at page 351: "The term `public policy' is frequently used very vaguely, and evidently is so used here. It is, however, quite a definite thing. Public policy on a given subject is determined either by the constitution itself or by statutes passed within constitutional limitations. In the absence of such constitutional or statutory determination only may the decisions of the courts determine it. Hartford F. Ins. Co. v. C., M. St. P. R. Co. 70 Fed. 201; S.C. 175 U.S. 91, 20 Sup. Ct. 33. This court has said: `We know of no ground upon which a constitutional legislative enactment can be rightly spoken of as contrary to public policy' (Julien v. Model B., L. I. Asso. 116 Wis. 79, 92 N.W. 561), and the remark is certainly correct. When acting within constitutional limitations, the legislature settles and declares the public policy of a state, and not the court. True, where the legislature has not spoken on a subject and the courts in the course of their duty have declared the principle of common law applicable thereto, public policy may be truly said to be thus created; but any public policy thus created by the courts may be at any time reversed or changed by the legislature, provided it act within constitutional lines. The people, acting directly by means of a referendum, or through their representatives in constitutional conventions or legislative bodies, are the makers of public policy, and it is only when the people have failed to speak in these methods that the courts can be said to have power to make public policy by decision. A constitutional statute cannot be contrary to public policy, — it is public policy."
By the Court. — Judgment affirmed.