Marathon County v. Industrial Commission

The following opinion was filed April 7, 1937 :

Fowler, J.

This action was brought to vacate an award of compensation by the Industrial Commission under the Workmen’s Compensation Act. A minor son of the applicants was working upon a county trunk road in Marathon *516 county and sustained an injury to his hand. Infection set in from which he died. The father had received supplies through the federal agency administering drought relief, and had agreed “in repayment thereof, to work sufficient hours on county or town roads, or on any other such projects in Marathon county as may be approved by the Wisconsin emergency relief administration or its agents.” The case was before the court in 218 Wis. 275, 260 N. W. 641, on appeal from a judgment of the circuit court for Dane county. An award had been made against the county by the Industrial Commission under the compensation act and affirmed by the circuit court. This court considered that the record did not support the award because certain facts were not shown which this court deemed essential to liability, and the case was reversed with directions to the circuit court to vacate the award and remand the record to the commission “for the taking of further evidence to the end that compensation may be awarded if any facts are disclosed that warranted it.” Further evidence has been taken by the commission, and the commission has made a second award, the circuit court has affirmed that award, and the county has appealed from the judgment of affirmance.

(1) It is stated in the former opinion of this court that if the work being done by the decedent when he was injured was repair work, such as the county highway commissioner or the highway committee of the county board might properly order without action of the county board, the county would be liable for compensation, irrespective of other matters. The present record shows that the work was entirely new construction, such as can only be authorized by the county board itself, as pointed out in the original opinion of the court. Recovery therefore depends on whether the facts existed at the time of the injury that are essential to fix liability-upon the county for work done by direction of the *517 Wisconsin emergency relief administration or its agents in administering the federal drought-relief program. For a more detailed statement of those facts than we deem necessary to restate here, we refer to our former opinion. Two of the facts there stated as necessary to fix such liability are that the county board of plaintiff county had adopted the drought-relief program, and that it had by appropriate action assumed liability under the Workmen’s Compensation Act for injuries to workmen engaged in working out drought-relief contracts on county roads. The only facts disclosed by the present record that were not included in the former record that could have any possible bearing on the two ultimate facts above stated are two resolutions adopted by the county board.

One of the resolutions above referred to was adopted on April 19, 1934, five days before the decedent was injured, and reads as follows :

“Resolution — Re Drought Relief. Resolved, by the Marathon County Board of Supervisors that it is the sense of this board that the drought relief extended to various farmers be worked out in the various towns and villages where the recipient of such relief resides.” ■ • ■

The other resolution referred to was adopted on July 18, 1934, about seven weeks after the decedent was injured. It recited that the question of carrying insurance for the protection of workers on relief pay rolls had been discussed at various county board meetings without any conclusion being reached; that liability attached to the county under various drought-relief projects for injuries sustained by employees on such projects; and “Resolved”’ that the county would not take out indemnity insurance against liability for such injuries but would carry its own risk on all relief projects.

It was held in our former opinion that adoption of the drought-relief program and assumption of liability under the Workmen’s Compensation Act could only be effected by ap *518 propriate action by the county board itself, as distinguished from action by the county highway commissioner or the county highway committee acting as an agent of the Wisconsin emergency relief administration. We are unable to perceive that either of the two resolutions above mentioned, or the two of them together, constitute action by the county board prior to the time decedent was injured that assumed liability under the Workmen’s Compensation Act. If it be conceded that the combined effect of the two resolutions was to adopt the drought-relief program and assume liability for compensation under the act to drought-relief workmen who should be injured after the adoption of the last resolution, it did not assume responsibility for compensation to drought-relief workmen injured before the passage of that resolution who had been put to work by the county highway commissioner acting as an agent of the Wisconsin emergency relief administration, without previous action by the county board authorizing him to put them to work and assuming responsibility for injuries to them under the act. As the decedent was injured before the passage of the last resolution, the county sustained no liability for his injury or his resulting death, and the application to the Industrial Commission for compensation should have been dismissed.

By the Court. — The judgment of the circuit court is reversed, and the record is remanded with directions to enter judgment vacating the award.