Syllabus by

On October 14, 1924, Thompson, an employee in the service of an employer employing five or more workmen, but who had not complied with the workmen’s compensation law„ was injured. Upon his application for compensation the Industrial Commission found all the jurisdictional facts in applicant’s favor, including, the fact that the employee was in the service of an employer employing five or more workmen and at the same time found that Bonney was his employer; and on March 31, 1925, th'c commission made an award of compensation to Thompson. Being notified of the commission’s finding, Bonney applied to the commission for a re-hearing and contested the award upon •the ground that one Bergman, and not he. was Thompson’s employer. That issue was found by the commission against Bonney, his application for re-hearing denied and the award certified to the attorney general for collection. The attorney general instituted suit in the name of the state against Bonney for the amount of the award. Bonney contested the suit before a court and jury and secured a favorable verdict, presumably upon the issue that he was not Thompson’s employer. Held:

EMPLOYER & EMPLOYE

(250 W3) The verdict and judgment in the state’s suit was not an adjudication against Thompson, the injured employe, who was not a party thereto, had no control over it and who had no opportunity of showing that Bonney and not Bergman was, in fact, his employer.

Section 1465-74 GC, then in force, provided that “any” injured employe, whose employer had failed to comply with the workmen’s compensation law, could file his application for compensation and secure an award from the „ commission, and that the commission must award compensation “in like manner as in other cases” where the employer had complied therewith. If Thompson’s employer employed five or more persons, he was entitled to compensation under that section, whether employed by Bergman or Bonney. The duty of aeertaining who was the employer rests upon the state; if the state fails to collect premiums from or fails to fix liability upon the real employer, such failure does not deprive the injured employe from obtaining his award from the surplus fund created by 1465-54, GC.