(dissenting). I cannot concur either in the opinion as written or the result reached by the court in *51this case, and I feel it my duty in this case to state the reasons for my dissent.
' The defendant Pump Company employed the Universal Construction Company to construct a building; the Universal Construction Company employed the plaintiff as one of its workmen; both companies were under the workmen’s compensation act. The plaintiff was injured, made claim for compensation against the Universal Construction Company, which paid the amount of the award, and upon the facts as stipulated thereafter re-assigned the cause of action' thus acquired, if any existed, to the plaintiff, who brings this action against the defendant Pump Company, claiming that it is liable by reason of its negligence for the injuries sustained by the plaintiff. There exists no doubt in my mind that the workmen’s compensation act preserves to the injured workman, and in the case of an award to him under the compensation act for the benefit of his employer, such cause of action as may exist at common law against a third person.
The crucial question in this case is, Was the defendant Pump Company a third or other person within the meaning of the statute? The beneficent purposes of the workmen’s compensation law have been so often and exhaustively dealt with that it is not necessary to do more than recall the general scope and purpose of the act, which was to charge against any particular industry or operation liability for injuries incurred by workmen in the carrying on of the industry or operation. It may be conceded at the outset that if we look only to the language of sec. 102.29, Stats., the result reached by the court follows as a matter of strict logic. It is my contention that the statute should be construed as a whole and that the clearly expressed legislative intent should be given full effect. The court holds that because the defendant Pump Company is not directly liable to the injured employee for compensation, it is of necessity “a third person” within *52the meaning of sec. 102.29. That section provides that the making of a lawful claim by an injured employee under the act shall operate as an assignment of any cause of action which the employee “may have against any other party for such injury or death,” and that if the employer recover against such “third party” in no event shall the beneficiary receive less than one third the amount recovered from the third party, less the reasonable cost of collection. Sub. (2), sec. 102.29, provides that the commencement of an action by an employee against a third party shall operate as a waiver of any claim for compensation against the employer.
Sec. 102.04 defines an employer as follows:
“(2) Every person, firm, and private corporation (including any public-service corporation), who has any person in service under any contract of hire, express or implied, oral or written, and who, at or prior to the time of the accident to the employee for which compensation under sections 102.03 to 102.34, inclusive, may be claimed. ...”
Sec. 102.06 provides:
“An employer subject to the provisions of sections 102.03 to 102.34, inclusive, shall be liable for compensation to an employee of a contractor or subcontractor under him who is not subject to sections 102.03 to 102.34, inclusive, or who has not complied with the conditions of subsection (2) of section 102.28 [relating to insurance to be carried by the subcontractor] in any case where such employer would have been liable for compensation if such employee had been working directly for- such employer.”
Within the plain language of this section the defendant Pump Company was an employer, and it was admittedly subject to the provisions of the act and otherwise liable, therefore, for compensation to any employee of the Universal Construction Company, saving and excepting only that the Universal Construction Company was under the act and carried the requisite amount of insurance prescribed by the act. *53Being under the act, the employing defendant Pump Company certainly did not take itself out from under the act because it performed the duties prescribed for it by the act, in requiring its subcontractor to come under the act and carry insurance. If the employing defendant Pump Company was under the act, it is certainly an unreasonable construction to say that because it complied with the terms of the act it ceased to be under it. The manifest purpose of sec. 102.06 is to insure to employees the protection of the workmen’s compensation act by making the principal employer liable directly to the injured employee unless the intervening employer has done certain things prescribed by the act. For purposes of illustration, suppose the following case: A. is a principal employer. He hires two subcontractors, L. and M., all three being under the workmen’s compensation act, each of the two subcontractors being required by the terms of the act to carry insurance conformable with the terms of the act. Each of the subcontractors procures such insurance and enters upon the performance of their respective portions of the work. Subcontractor L. is insured in a company which goes into bankruptcy and so avoids the insurance. Before new insurance is procured, an employee of subcontractor L. and an employee of subcontractor M. are each injured in the same accident under precisely the same conditions. Under the construction adopted by the court A. would be liable to the employee of subcontractor L. under the workmen’s compensation law, while A. would be liable to the employee of subcontractor M. in a common-law action of tort, simply be-' cause in one instance the court has denominated A. an employer and in the other case, under precisely the same circumstances, has said that he is a third or other party.
I cannot concur in a construction which seems to, me to be so absolutely opposed to the clear legislative purpose and which penalizes A. if he "-complies with the act and requires *54one subcontractor to come under the act and take out insurance and limits his liability if he contracts with another contractor who does not come under the act and does not take out insurance. The defendant Pump Company was a corporation from which, at or prior to the time of the accident to the employee, compensation under secs. 102.03 to 103.34, inclusive, might be claimed, and was therefore an employer. The act does not say that at the time of the happening of the accident an employer is limited to one who is then liable for compensation under the act. If he has been so liable at any time and the act by its express terms makes him liable unless he does certain things, he is an employer within the meaning of sec. 102.29. It is not enough to say that he might never at any moment of time have been liable to any particular injured employee; the mere fact that the contingency which might make him liable does not arise, does not take him out of the class of persons from whom compensation may be claimed when the contingency does arise, and he is therefore under the act and not another person or third party within the meaning of the act.
If the principal contractor, who has complied with the law and required his subcontractor to protect his employees by insurance, is not an employer within the meaning of the statute, I see no constitutional basis upon which liability may be imposed upon him. It is said that by accepting the terms of the act he becomes an insurer; the act makes no provision for third .or other parties bringing themselves within its terms. One not an employer cannot “accept the provisions of the act.” The relationship is certainly not that of insured and insurer, for that relationship implies the voluntary agreement to assume by contract a definite obligation. The act has been construed by the industrial commission, by employers, and by the representatives of labor in accordance with the contention of appellant, and I regard it as unfortunate that what seems to me to be a much narrower construction is *55now placed upon it, which seems to me not to be consonant with the scope and purposes of the act generally.
I am therefore of the opinion that the order should be reversed.
I am authorized to say that Mr. Justice Eschweiler and Mr. Justice Crownhart concur in this dissent.
A motion for a rehearing was denied, with $25 costs, on February 8, 1927.