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facts may be the law is the same. The conclusion of the commission must be sustained, unless the facts clearly preponderate against such conclusion. We agree with both the commission and the lower court that appellant's case falls far short of showing him entitled to relief. The case as a whole with all its attendant and controlling circumstances clearly preponderates against appellant. Section 6604-20, Rem. Code, provides that:— "In all court proceedings under or pursuant to this act the decision of the department shall be prima facie correct, and the burden of proof shall be upon the party attacking the same.

Appellant has not met the burden thus placed upon him, and if we were in doubt as to the preponderance of the facts, our decision, under this section, must necessarily go against appellant. We have, however, no doubt, but believe the commission adjudged the case correctly in the first instance.

Judgment is affirmed.

Ellis, C. J., and Holcomb, Main, and Chadwick, JJ., concur.

SUPREME COURT OF WISCONSIN.

NEW DELLS LUMBER CO.

VS.

INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

WORKMEN'S COMPENSATION ACT REVIEW OF AWARD SERVICE OF SUMMONS.

Even if the time provided by statute for service on adverse party of summons and complaint in action for review of Industrial Commission award can be enlarged, special circumstances must be shown.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge. Action by the New Dells Lumber Company against the Industrial Commission of Wisconsin and another. From an order of dismissal, plaintiff appeals. Affirmed.

An appeal from an order of the circuit court of Dane county, dismissing this action, upon the ground that the court had no jurisdiction thereof for want of service of the summons and complaint on the defendant, Frieda Vennen. within 20 days of the commission's award. This is an action to review an award of the Industrial Commission. The award made to Frieda Vennen by the Industrial Commission was dated June 5, 1917. On June 12, 1917, the plaintiff, against whom the award had been made, served a summons and complaint on the Wisconsin Industrial Commission, and on July 6th served the same on Frieda Vennen. The plaintiffs procured an order from the court requiring the defendants to show cause why the service of the summons and complaint on Mrs. * Decision rendered, Oct. 23, 1917. 164 N. W. Rep. 824.

Vennen on July 6, 1917, should not be allowed to stand as complete service, and that the time within which service may be made enlarged so as to permit the service to stand. The court dismissed the action, on the ground that no service was made on Frieda Vennen without 20 days from the date of the award and order of the Industrial Commission, and that, no service having been made on this defendant within that time, the court had no jurisdiction to review the commission's award and order. The court denied the motion of the plaintiff to permit the service made on the defendant to stand a complete service, and also denied the motion to enlarge the time for the service, on the ground that the court had no jurisdiction to enlarge the time for service of process in this action.

Sturdevant & Farr, of Eau Claire, for Appellant.

W. C. Owen, Atty. Gen., and Winfield W. Gilman, Asst. Atty. Gen., for Respondent.

SIEBECKER, J. (after stating the facts as above). Section 2394-19, Stats.,, provides that a party, aggrieved by an order or award of the Industrial Commission under the Workmen's Compensation Act, may bring an action for the review thereof against the commission, "in which action the adverse party shall also be made defendant." Under this statute it has been held that :—

"It would be unreasonable, if not absurd, to require the claimant under the award to be made a party defendant with no obligation to make service on him as a jurisdictional requisite to his being afforded his day in court. The fair meaning of the statute is that service on the commission in the manner specified 'shall be deemed completed service' on it, and that the requirement as to making the adverse party' a defendant includes that of making service on such party as in ordinary cases." HammondChandler Lumber Company vs. Industrial Commission, 163 Wis. 602, 158 N. W. 295.

* * *

In the recent case of Gouch vs. Industrial Commission, 165 Wis. 632, 162 N. W. 434, it was held that the provision of this section of the act requires that the summons and complaint in such an action for the review of the award be served on the adverse party within the twenty days limited by the provision of the above section of the statute, and that in default of such service of the summons and complaint on the adverse party the court acquired "no jurisdiction to proceed in any action which would affect the rights of such adverse party." This adjudication declares the Legislature's intent of the statute and leaves no room for contention that the Legislature intended that "service upon the secretary of the commission or any member of the commission shall be deemed completed service," and that it confers jurisdiction on the circuit court to proceed in the action if the adverse party is made a party to such action, though not served with a summons and complaint within the twenty days limited by the

statute.

It is not claimed that the summons and complaint in this action were put in the hands of the sheriff, or other persons authorized

to make service thereof, for the purpose of serving them on Frieda Vennen, personally or by publication. No question, therefore, arises as to the effect of such an attempted service on Frieda Vennen. It is considered that, under the limitations of twenty days specified in section 2394-19 for the service of the summons and complaint in this class of action, no facts and circumstances are presented by the plaintiff in this case for which relief from the default can be granted, if the statute permitted of such relief, which is not decided.

The order appealed from is affirmed.

SUPREME COURT OF WISCONSIN.

WAUSAU LUMBER CO.

VS.

INDUSTRIAL COMMISSION ET AL. (No. 85.)*

1. WORKMEN'S COMPENSATION ACT-REVIEW OF DECISION OF INDUSTRIAL COMMISSION.

Where there is substantial evidence to support the findings of the Industrial Commission they must prevail; if, in any reasonable view of the evidence, it will support, directly or indirectly or by fair inference, the Commission's findings they must be regarded as conclusive.

2. WORKMEN'S COMPENSATION PLOYEES OF SUBCONTRACTOR.

ACT-INJURIES TO EM

The deceased servant's employer contracted with principal contractor of the general employer on Sunday. which contract was void, and not within St. 1915, Section 2394-6, relating to the liability of employer for injuries of employees of a subcontractor. Work was performed on secular days with general employer's knowledge, it consenting and receiving full benefit. It must be presumed there was an implied contract made to do the work which was not tainted with such fatal invalidity as to prevent the subcontractor's principal contractor from recovering of the general employer of the work.

3. WORKMEN'S

COMPENSATION ACT-INJURIES TO EMPLOYEE OF SUBCONTRACTOR.

Though the deceased servant did work for a subcontractor under a void contract made on Sunday by a subcontractor with principal contractor of general employer, servant was an employee of subcontractor within the statute and rights of employee are not affected by invalidity of the subcontract.

Appeal from the Circuit Court for Dane County; E. Ray Stevens. Circuit Judge.

Action to set aside a decision of the Industrial Commission awarding * Decision rendered, Oct. 23, 1917. 164 N. W. Rep. 836.

compensation from appellant on account of the death of her husband Walter Durkee.

The commission found as facts: January 27. 1915, Walter Durkee, husband of Emma Durkee, was an employee of Ernest Hart in the performance of work which said Hart was engaged in as a subcontractor under Charles Giese who was a contractor for such work under the Wausau Lumber Company. Neither Hart nor Giese were employees within the meaning of the Workmen's Compensation Law. Neither of them had insured against claims for injuries to their employees. The Wausau Lumber Company had duly elected to become subject to the Workmen's Compensation Law, sections 2394-3 to 2394-31, inclusive, and was carrying insurance according to the provisions of such sections. On said January 27th, 1915, said Durkee sustained personal injuries resulting in his imediate death. His injuries were not intentionally self-inflicted and were proximately caused by accident, in the course of his said employment. All further facts were found essential to warrant the award of compensation complained of.

The trial court decided that the finding made by the commission that Durkee was, when injured, in the employ of Hart who was a subcontractor of Geise, a principal contractor of the Wausau Lumber Company, was sustained by the evidence, and therefore affirmed the award.

Brown, Pradt & Genrich, of Wausau, for Appellant.

W. C. Owen, Atty. Gen., and Winfleld W. Gilman, Asst. Atty. Gen., for Respondents.

MARSHALL, J.

A careful examination of the record and the analysis thereof by counsel for appellant lead to the conclusion that the findings of the commission cannot be disturbed as against the evidence. Such findings cover, in favor of respondents, all the essentials to a recovery of compensation under section 2394-6, Stats., in connection with other material provisions of the Workmen's Compensation Law, as the court below decided. No reason is therefore perceived why there is any infirmity in the judgment complained of.

[1] All of the objections to the judgment urged by counsel for appellant have been considered; but it does not seem advisable to discuss them at length. The main question below was, and is here, whether the evidence warranted the findings upon which the judgment rests, particularly whether Durkee was an employee of a subcontractor. There is substantial evidence in support of the findings so they must prevail. The rule in that regard is well settled to the effect that, if in any reasonable view of the evidence it will support, either directly or indirectly, or by fair inference, the findings made by the commission, then they must be regarded as conclusive. Borgnis vs. Falk Co., 147 Wis. 327, 133 N. W. 209, 37 L. R. A. (N. S.) 489; Milwaukee Coke & Gas Co. vs. Industrial Commission, 160 Wis. 247, 151 N. W. 245; Milwaukee vs. Industrial Commission, 160 Wis. 238, 151 N. W. 247. [2] Much of the argument of counsel for appellant is grounded on the fact, which appears from the evidence, that Durkee's employer, Hart, made his contract with the principal contractor, Giese, on Sunday, and was, therefore, void and not within the

scope of section 2394-6, Statutes, relating to liability of employer for injuries to employees of a subcontractor. There seems to be, at least, two conclusive answers to that: First, all of the work was performed on secular days with the knowledge of appellant. It consented thereto and received the full benefit thereof. Under those circumstances it must be presumed that there was an implied contract made to do the work which was not tainted with such fatal infirmity by the Sunday transaction as to prevent Giese from recovery of appellant of compensation for such work. King vs. Graef et al., 136 Wis. 548, 117 N. W. 1058, 20 L. R. A. (N. S.) 86, 128 Am. St. Rep. 1101. As said in effect, in that case, it was perfectly lawful for Giese to perform the work on the secular days with appellant's knowledge and implied request and to charge and receive pay therefor, which would comprehend all the essentials of a complete contract upon which there was a legal liability. Taylor vs. Young, 61 Wis. 314, 21 N. W. 408, and Vinz vs. Beatty, 61 Wis. 645, 21 N. W. 787, are to the same effect.

[3] Second, even if the work was done under a void contract, we are of the opinion that Durkee was an employee of a subcontractor within the meaning of the statute just the same. As has often been held, the statute must be given a broad, liberal meaning to the end that the beneficent purpose of it may be fully carried out. It is the opinion of the court that if a person who is a subcontractor, employs another in respect to the work which is the subject of the contract, the rights of the employee under the Workmen's Compensation Law are not affected by an invalidity of the subcontract. The statute expressly makes the principal liable, in specified circumstances, for injuries to employees of a subcontractor. The rights of an employee or his dependents cannot be defeated by interpolating, by implication, into the statute words limiting it to valid contracts, without going contrary to the manifest purpose of the Legislature to burden the products of servant labor with the personal injury incident thereof. The judgment is affirmed.

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