Armstrong v. Indus. Comm'n

• Decision Date: 15 December 1948
• Citation: 35 N.W.2d 212,254 Wis. 174
• Parties: ARMSTRONG v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

254 Wis. 174

35 N.W.2d 212

ARMSTRONG

v.INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

Dec. 15, 1948.

Appeal from a judgment of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Reversed and remanded.

This action was commenced on October 11, 1947 by Evelyn A. Armstrong, plaintiff, against Industrial Commission of Wisconsin, F. G. Findley Co., and Hartford Accident and Indemnity Company, defendants, to review an order of the Industrial Commission dismissing her application for compensation based on the death of her husband. From a judgment entered on June 21, 1948 reversing the order of the Industrial Commission defendants appeal. The material facts will be stated in the opinion.

Quarles, Spence & Quarles, of Milwaukee (Richard S. Gibbs and Kenneth Grubb, both of Milwaukee, of counsel), for appellants F. G. Findley Co. and others.

Grover L. Broadfoot, Atty. Gen. and Mortimer Levitan, Asst. Atty. Gen., for appellant Industrial Commission.

Otjen & Otjen, of Milwaukee, for respondent.

WICKHEM, Justice.

Elijah Grattan Armstrong was the husband of plaintiff. The parties were married in 1930 and lived in Michigan until June, 1942 at which time they came to Milwaukee where Armstrong obtained employment with F. G. Findley Company, producers of industrial adhesives. Within a few months he moved his family from Michigan to Milwaukee and worked at the Findley Company, learning the business. He was thereafter given a job as traveling salesman in Michigan. His family continued to reside in Milwaukee for a year and four months while he traveled in Michigan for the Findley Company. On July 1, 1944 he moved his family to Adrian, Michigan, so that he could get home every week-end. He had ultimate hopes of being stationed permanently in Milwaukee. It was the practice of Armstrong to go to Detroit about once a month and to spend a week or two there. For the purposes of his business in Detroit he had rented a room in a private home which he maintained continuously at his employer's expense. He had a sister at Windsor, Canada, and frequently visited there when he was in Detroit. Before leaving his home on November 12, 1945 for a regular business trip he stated to his wife that he might visit his relatives in Windsor on the 14th. He arrived in Detroit on November 12th and made calls on Monday and Tuesday. On the morning of November 14th he informed the owner of the house where he roomed that he might not be home that night because he was going to visit relatives in Windsor. He made four business calls, his last for the day being at the Koppitz Melcher Brewery where he came about 2:30 and left about 4 o'clock. The brewery was located on the Detroit River. The brewery fronts on East Atwater Street which runs approximately east and west and on DuBois Street which runs approximately north and south, and terminates approximately at the river and the south end of the brewery was close to the edge of the river. There was a boatslip just west of DuBois Street running about one hundred feet north towards the brewery. An eighteen inch abutment extended along the east side of this boatslip. The north end of the boatslip was about sixty-eight feet south of the door where Armstrong left the brewery and the river bank was about one hundred sixty-eight feet south of the door. While the matter does not appear to have been testified to by any witnesses a map introduced by stipulation seems to indicate a narrow invasion of the river extending to the north and west and roughly opposite the door above referred to. This was bounded on the west by a strip of land about fifty feet wide parallel to DuBois Street.

Armstrong entered the brewery on DuBois Street at a point about 168 feet from the river. Upon concluding his business and leaving the brewery he inquired for the best way to get to Windsor because he had a dinner engagement with a relative. Nothing is known of his whereabouts from the time he left the brewery until his body was found in the Detroit River. The body was not found until January 6, 1946 and it was on the Canadian side of the river about five miles south and east of the brewery and in the vicinity of the town of Ojibway which is south of Windsor. The coroner who investigated the death was of the view that Armstrong's body had been in the water for from six to twelve hours but the pathologist who examined the body at the request of the coroner testified that the body had been in the water for five or six weeks. Both agreed, however, that there is no accurate or scientific way to determine how long a body has been in the water. Deceased had not been seen in Canada-at least by anybody who was produced at the hearing. There is proof that the current of the Detroit River swings from the vicinity of the brewery towards Windsor, back to...