#### Wiesedeppe, Appellant, vs. Zweifel and another, Respondents.

*December 8, 1916*

January *16, 1917.*

*Workmen’s compensation: When employee becomes subject to act.*

Where, by virtue of sub. 2, sec. 2394 — 5, Stats, (ch. 599, Laws 1913), an employer b'ecame subject to the Compensation Act on September 1, 1913, an employee whose contract of hire was made prior to that date did not, under sub. (2), see. 2394 — 8, without having given notice of his election, come under the provisions of the act until he had remained in the service of such employer for thirty days after said September 1st.

Appeal from, a judgment of the circuit court for Dane county: E. Ray Stevews, Circuit Judge. .

*Affirmed.*

This is an appeal from a judgment of the circuit court affirming the order of the *Industrial Commission*dismissing the application of the plaintiff for an award of compensation.

The question to be determined, as stated by the appellant, is whether the amendment to the Compensation Act in 1913 (ch. 599, Laws 1913) brings the plaintiff within the provisions of the Workmen’s Compensation Act as it existed on September 26, 1913, the date of the injury complained of.

*85Eor some time prior to September 1, 1913, tbe defendant *Nic Zweifel*employed in carrying on bis business seven men, among whom was tbe appellant. Up to September 1st said employer bad not been under tbe Compensation Act and did not come under it by any positive act of bis own, but by force of sub. 2, see. 2394 — 5, Stats. 1913, which section provides, in substance, that on September 1, 1913, every employer of four or more employees in a common employment would be deemed to have elected to accept tbe provisions of tbe Compensation Act unless be gave notice before that date that be would not come under it. In tbe instant case tbe employer never gave such notice.

Plaintiff was employed by defendant a few months prior to September 1, 1913, and so continued until date of tbe injury. Plaintiff did nothing of a positive nature indicating that be was or was not under tbe act, but simply continued to work after September 1, 1913. On September 26th, in tbe course of bis employment, be was severely injured.

Tbe *Industrial Gommission*and tbe circuit court held that be was not under tbe law as amended. Whether be was or not is tbe only question involved upon this appeal.

Tbe cause was submitted for tbe appellant on tbe brief of *Otjen & Otjen*of Milwaukee, and for tbe respondent *Industrial Gommission*on that of tbe *Attorney General*and *Win-field W.*Gilman, assistant attorney general.

Kerwin, J.

Tbe statutes relating to employers and employees under tbe Workmen’s Compensation Act, among other things, provide:

> “Section 2394 — 4. Tbe following shall constitute employers subject to tbe provisions of sections 2394 — 3 to 2394 — 31, inclusive, within tbe meaning of section 2394 — 3:

> “(!)

> “(2) Every person . . . who has any person in service under any contract of hire, . . . and who, at or prior to tbe *86time of tbe accident to the employee for which compensation . . . may be claimed, shall . . . have elected to become subject to the provisions of sections 2394 — 3 to 2394— 31, inclusive, and who shall not, prior to such accident, have effected a withdrawal of such election, in the manner provided in subsection 1 of section 2394 — 5.

> “Section 2394 — 5. 1. Such election on the part of the employer shall be made by filing with the industrial commission, a written statement to the effect that he accepts the provisions of sections 2394 — 3 to 2394r — -31, inclusive, the filing of which statement shall operate, within the meaning of section 2394 — 4, to subject such employer to the provisions of sections 2394- — 3 to 2394 — 31, inclusive, for the term of one year from the date of filing such statement, and thereafter, without further act on his part, for successive terms of one year each, unless such employe!' shall, at least sixty days prior to the expiration of such first or any succeeding year, file in the office of said commission a notice in writing to the effect that he desires to withdraw his election to be subject to the provisions of sections 2394 — 3 to 2394 — 31, inclusive.

> “2. On and after September 1, 1913, every employer of four or more employees in a common employment shall be deemed to have elected to accept the provisions of sections 2394 — 3 to 2394 — 31, inclusive, unless prior to that date such employer shall have filed with the industrial commission a notice in writing to the effect that he elects not to accept the provisions hereof. Provided, that any employer commencing business subsequent to September 1, 1913, may make his election not to become subject to sections 2394 — 3 to 2394 — 31, inclusive, at anytime prior to becoming an employer of four or more employees in a common employment. Such employer may withdraw from the provisions of sections 2394 — 3 to 2394 — 31, inclusive, at the expiration of one year or at the expiration of any succeeding year in the manner provided in subsection 1 of section 2394 — 5.”

> “Section 2394 — 7. The term ‘employee’ as used in sections 2394 — 1 to 2394 — 31, inclusive, shall be construed to mean:

> “(i) ...

> “(2) Every,person in the service of another under any contract of hire, . . . but not including any person whose *87employment is but casual or is not in the usual course of the trade, business, profession, or occupation of his employer.

> “Section 2394 — 8. . . . Any employee as defined in subdivision (2) of section 2394 — 7 shall be deemed to have accepted and shall, ‘within the meaning of section 2394 — 3, be subject to the provisions of sections 2394 — 3 to 2394 — 31, inclusive, if, at the time of the accident upon which liability is claimed:

> “(1) The employer charged with such liability is subject to the provisions of sections 2394 — 3 to 2394 — 31, inclusive, whether the employee has actual notice thereof or not; and

> “(2) Such employee shall not, at the time of entering into his contract of hire, express or implied, with such employer, have given to his employer notice in writing that he elects not to be subject to the provisions of sections 2394 — 3 to 2394— 31, inclusive; or, in the event that such contract of hire was made in advance of such employer becoming subject to the provisions of sections 2394 — 3 to 2394 — 31, inclusive, such employee shall have given to his employer notice in writing that he elects to be subject to such provisions, or without giving either of such notices, shall have remained in the service of such employer for thirty days after the employer has filed with said commission an election to be subject to the terms of sections 2394 — 3 to 2394 — 31, inclusive, or when such employer has become subject to sections 2394 — 3 to 2394 — 31, inclusive, pursuant to subsection 2 of section 2394 — 5. . . ”

A careful examination of the law convinces us that plaintiff was not at the time of injury under the act. It is plain from the history of legislation on the subject under consideration that the policy of the legislature was not to make the law compulsory on employer or employee. But it is argued by counsel for appellant that the amendment of 1913 makes it clear that the plaintiff was under the act at the time of the injury. This contention is based mainly upon the last part of sub. (2), sec. 2394 — 8, Stats. 1913, which was added by the 1913 amendment and reads as follows: “or when such employer has become subject to sections 2394 — 3 to 2394 — ■ 31, inclusive, pursuant to subsection 2 of section 2394 — 5.”

*88Tbe argument is that tbe amendment of 1913 brings tbe employee under tbe act regardless of tbe thirty days’ limitation; that immediately upon tbe employer becoming subject to tbe act pursuant to sub. 2 of sec. 2394 — 5, tbe employee also becomes subject to tbe act.

We cannot tbink tbe legislature intended any sucb construction as tbat placed upon tbe law by counsel for tbe appellant. On tbe contrary, we are of opinion tbat tbe employee plaintiff was not under tbe act until tbe expiration of thirty days after tbe employer bad filed with said commission an election to be subject to tbe terms of secs. 2394 — 3 to ,. 2394 — 31, inclusive, or, in tbe event tbat tbe employer comes under tbe act pursuant to sub. 2, sec. 2394 — 5, then within thirty days from tbe time tbe employer became subject to tbe act under said sub. 2, sec. 2394 — 5.

In other words, we tbink tbe true construction of tbe last part of sub. (2), sec. 2394 — 8, is tbat tbe employee becomes subject to tbe act when he remains in tbe service of tbe employer for thirty days, without giving notice, after tbe employer has become subject to tbe provisions of tbe act either by filing an election to become so subject or pursuant to sub. 2, sec. 2394 — 5. We are therefore of opinion tbat tbe construction placed upon tbe law by tbe court below is right.

*By the Oourt.*— Tbe judgment is affirmed.