The following opinion was filed April 11, 1947: Motion for rehearing was granted, and after careful reconsideration in the light of the reargument, the court has concluded it was in error in its former decision.
In our previous consideration of this case we were impressed by the fact that the legislature, in defining "employer" in sec. 102.04 (2), Stats., used the words "usually employs," and realized it was a well-known fact that many small-town merchants, druggists, proprietors of restaurants, and people engaged in other lines of business usually employing less than three persons, on special occasions are required to employ three or more persons for not to exceed a few days each year in order to meet the demands of their customers. Most of these people know nothing about the Workmen's Compensation Act and few, if any, of these employers realize that by such temporary employment they become subject to the act. They are in the same position as the respondent in this action. We erroneously came to the conclusion that it was to eliminate this type of employer from responsibility under the act that ch. 87, Laws of 1931, was passed. We now conclude it was passed for the purpose of making the act compulsory and not elective. Under sec. 102.05 (1), Stats. 1929, an employer elected to come under the act for the term of one year from the date of filing such election, which election continued without further act on his part for successive terms of one year each, beginning *Page 139b July 1st, unless such employer, at least thirty days prior to the 1st day of July, filed with the Industrial Commission a notice in writing to the effect that he was withdrawing. Thus an employer with any number of employees could withdraw by filing a notice of his election to do so. By ch. 87, Laws of 1931, an employer who usually employs three or more employees compulsorily comes under the act and cannot elect to withdraw so long as he usually employs three or more employees. By sec. 102.04 (3), every person, firm, or private corporation to whom sub. (2) of sec. 102.04 is not applicable, who shall in the manner provided in sec. 102.05 elect to become subject to the provisions of the act is an employer. Thus, if he shall at any time have three or more employees, or shall file an election to become subject to the act, or shall enter into a contract for insurance of compensation, or against liability therefor, he is an employer under the act. Immediately upon the employment of three or more persons he becomes subject to the act. Guse v. IndustrialComm. (1926) 189 Wis. 471, 205 N.W. 428, 208 N.W. 493, but at any time that he has less than three employees he can withdraw as provided in sec. 102.05 (1).
The respondent Stapleton, as found by the Industrial Commission, had three or more employees at one time so as to bring him under the act, and at no time did he withdraw. We therefore conclude that the Industrial Commission properly awarded compensation to Lloyd Anderson, the injured employee.
By the Court. — The mandate heretofore entered is hereby vacated and set aside, the judgment appealed from is reversed, and the cause is remanded with directions to the trial court to affirm the order of the Industrial Commission.
RECTOR, J., took no part. *Page 140