Rainbow Gardens v. Industrial Commission

Rosenberry, J. In his opinion directing judgment the trial court said: “At the time of injury applicant was serving plaintiff as a doorkeeper. As is clearly indicated by plaintiff’s instructions to him, he was not there acting in his capacity as a peace officer. He was not instructed to exclude those who might create a disturbance or cause a breach of the peace, but only those who had not made reservations in advance. ... “The fact that a man holds the appointment of deputy sheriff does not make him an officer when he is doing farm work or when he is working for a third person in the capacity of a doorkeeper. He is an officer only when he is serving the public in an official capacity. ... [226] “The public does not supply deputy sheriffs to act as doorkeepers for persons who conduct private places for profit, and the public is not liable to pay compensation to employees who happen to be deputy sheriffs for the injuries sustained in the course of their employment by such private persons.” With the conclusions of the trial court we fully agree. They fully and accurately state the law applicable to the facts in this case. The act of the doorkeeper in attempting to prevent the entrance of the group who had no tickets was clearly an act within the scope of his employment and in respect to which he acted for and on behalf of the plaintiff. Bergman v. Hendrickson, 106 Wis. 434, 82 N. W. 304. It is contended by the plaintiff that the average annual earnings of the claimant were not established with sufficient definiteness to enable the Commission to determine the proper amount of compensation to be awarded claimant. Sec. 102.09, Stats., provides that the average annual earnings of the claimant shall be the basis .for computing the amount of the award. Sec. 102.11 provides how the computation shall be made; par. (a) of sub. (1) is not applicable, and the result in this case seems to have been arrived at by applying combination of par. (b) and (c). There is no evidence in this case of what the average daily wage or salary of an employee of the same class, working substantially the whole of such immediately preceding year at the same or similar employment, would be. Therefore, the situation seems to fall under par. (c), which provides that where the^ provisions of par. (a) and (b) are not applicable, “such average annual earnings shall be taken at such sum as, having regard to the previous earnings of the injured employee, and of other employees of the same or most similar class, working in the same or most similar employment, in the same or a neighboring locality, shall reasonably represent the average annual earning capacity of the injured employee.” The evidence in this case discloses that the employment in which claimant was engaged at the time of his injuries is [227] seasonal and irregular; that he was so employed a few times per year. 'No effort was made to show what a person continually employed. under the conditions prescribed by par. (c) .would earn in any year. In West Salem v. Industrial Comm. 162 Wis. 57, 155 N. W. 929, a claimant for a death loss, where the deceased was a plumber and had been summoned as a part of a posse and died while rendering such services, was held to be entitled to compensation on the basis of the earnings of one doing'-the kind of service he whs-'rendering-'at "the time of his death and not that in which he was customarily and ordinarily engaged. The widow in that case was awarded .compensation on the basis of a policeman’s wages rather than those of a plumber. The award in this case apparently assumes that some person would' find employment of the kind in which claimant was held engaged for 260 days in the year, while the evidence discloses the contrary to be true. Whatever basis of computation is adopted should be pursued. The Commission is not warranted in proceeding partially on one basis and partially upon another. If deputy sheriffs in the vicinity of Outagamie county earn a yearly wage, that fact should be established if that is the most similar employment. It cannot be assumed that such a person earns for 260 days the maximum amount paid for a casual and extraordinary service on a single occasion. The evidence submitted upon this branch of the case was very meager and most unsatisfactory. It is considered that the judgment of the cirtuit court affirming the award of the Commission should be reversed, and the cause remanded with directions to the circuit court to remand the record to the Industrial Commission, for further evidence to be taken and the average annual earnings of the claimant ascertained in accordance with the provisions of the statute. . . By the Court. — It is so ordered.