City of Milwaukee v. Fera

Winslow, C. J. In order to be entitled to compensation under the workmen’s compensation act the claimant must have been, at the time of the accident, (1) an employee of the party of whom compensation is claimed, and (2) performing some service growing out of and incidental to his employment. Sec. 2394 — 3, Stats. It seems ■ clear to us that the claimant here answered both requirements. It must be conceded, not only that the claimant was in the employ of Boadi at the time of the accident, but that he was then engaged in his regular work as such employee. Boadi was not subject to the provisions of the compensation act, and that act provides (sec. 2394 — 3) that an employer subject to the provisions of the act shall be liable for compensation to an employee of a contractor or subcontractor under him who is not subject to the act in any case where such employer would have been liable for compensation if such employee had been working directly for such employer. The city of Milwaukee is subject to the provisions of the act, and this provision plainly made the claimant here the employee of the city while carrying out Boadi’s contract with the city to the same extent that he was an employee of Boadi, so far as the purposes of the compensation act are concerned. So there can be no doubt of the existence of the [350] relation of employer and employee within the meaning of the compensation act at the time of the accident. • That the claimant was then- performing service growing out of and incidental to his employment seems equally beyond doubt. He was taking the garbage collection equipment, part of which belonged to the city, to its usual place of storage and care so that it should be ready for the work of the following day. We can hardly conceive of a service which grows out of and is incidental to his employment as a garbage collector if this is not such a service. Py the Court. — Judgment affirmed.