Lange Canning Co. v. Industrial Commission

The following opinion was filed March 11, 1924: Owen, J. The liability of the appellant is predicated upon the provisions of sec. 2394 — -6, Stats., which makes an employer, subject to the provisions of the compensation act, liable for compensation to an employee of a contractor or subcontractor, under him who is not sub j ect to the act. The contention is that Smith was an independent contractor of the Lange Canning Company at the time the injuries were sustained. ' If such relation existed at the time the injuries were sustained, the appellant is clearly liable under the provisions of the statute referred to. But that he was at any time a contractor of the Lange Canning Company is not clear, tie was conducting an independent business on premises owned by the Lange Canning Company which he occupied rent-free. His relation would seem to be more analogous to that of a tenant rather than a contractor of the Lange Canning Company. However, if Smith was a contractor of the Lange Canning Company, his contract was completed and their relations terminated prior to the time the injury was sustained. Pie had already served breakfast. That was the last act to be performed by him under the arrangements between him and the Lange Canning Company. He had already removed most of his belongings from the premises. If their relations had not then terminated, it is difficult to say when they did terminate. Even though the claimant continued ih his employ, she was not an employee of the Lange Canning Company, within the contemplation [587] of the statute, if the relation existing between her employer and the Lange Canning .Company had been terminated. If she were in the immediate employ of the Lange Canning Company, whether she would be entitled to compensation for injuries, after her contract of employment had terminated but before she left the premises, would present another question. The act relied on makes the employer liable for injuries to a subcontractor. Manifestly the employer is liable only for such injuries as are sustained while the relation of contractor exists. We think that relation, if it ever did exist, was terminated before the injuries were sustained, and that the Lange Canning Company is in no sense liable for compensation therefor. It is claimed, however, that because the Lange Canning Company voluntarily paid the temporary award of $95.15 without appealing therefrom, the question of its liability is res adjudicata. Sec. 2394 — -19 provides for the review of an award (which is commonly called an appeal) in the following language: “The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive ; and the order or award, either interlocutory or final, whether judgment has been rendered thereon or not, shall be subject to review only in the manner and upon the grounds following: Within twenty days from the date of the order or award, any party aggrieved thereby may commence, in the circuit court for Dane county, an action against the commission for the review of such order or award, in which action the adverse party shall also be made defendant.” Here there were two awards. The first was for a relatively small amount. The Lange Canning Company might not have felt aggrieved'by this award, or it might have considered it cheaper, to pay the award than to bring the necessary proceeding to be relieved therefrom. It was confronted with a different business proposition, however, when the larger award was made. It was the larger and .not the [588] smaller award by which it felt aggrieved. The statute specifically prescribes that it might bring an action to review either an interlocutory or final award, which action might be brought within twenty days from the date of the order or award by which it is aggrieved. The voluntary payment of the first or temporary award did not bar it from bringing an action to review the second award, with the same right to challenge every ground upon which the award was based that it would have had in the event that no temporary award had been made. It is true that the award here under review is based on the same findings of fact, so far as the relation of the parties is concerned, that constituted the basis of the temporary award. But' it has never been held, so far as we are advised, that findings of fact constitute res ad judie ata. Neither are we prepared to say that the doctrine of res ad judicata is applicable to administrative findings or orders. But we have considered the question upon the theory upon which it was argued and have arrived at the conclusion that the statute expressly authorizes an action to review either the interlocutory or final award, and that the voluntary payment of one does not affect the right to- review the other, even though both be based on the same findings of fact. It follows that the award here under'review was erroneous, and should be vacated and set aside. By the Court. — Judgment reversed, and cause remanded with directions to enter judgment vacating the award of the Industrial Commission. A motion for a rehearing was denied, without costs, on May 6, 1924.