Carey v. Indus. Comm'n

• Decision Date: 18 June 1923
• Citation: 181 Wis. 253,194 N.W. 339
• Parties: CAREY v. INDUSTRIAL COMMISSION ET AL.
• Court: Wisconsin Supreme Court

181 Wis. 253

194 N.W. 339

CAREY

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

June 18, 1923.

Appeal from Circuit Court, Dane County; George Thompson, Judge.

Proceeding under the Workmen's Compensation Act (St. 1921, §§ 2394--1 to 2394--97) by Irene Carey, to recover for the death of Michael Carey, employee, opposed by Martin Joyce, employer. A finding by the Industrial Commission denying an award was affirmed, and plaintiff appeals. Affirmed.

Workman's compensation. Death claim. On the 19th day of August, 1921, Michael Carey, the deceased husband of the plaintiff, met his death while employed by the defendant, Martin Joyce, at road work. The evidence relating to the manner of his death is not in dispute. It appears that Carey, at the time of his death, was engaged with 25 other men in the construction of a trunk line highway at a point west of Verona, in Dane county. About 4 o'clock in the afternoon a storm came up from the west, and Carey, either at the direction of the foreman or upon his own motion, unhitched his team, and he, with other teamsters, went to a barn on the Riley farm. The stall in which Carey kept his horses was in the northwest corner of the basement of the barn, between the driveway and the corner of the barn. The barn was rented by Joyce for the purpose of stabling the horses. While Carey, with other teamsters, was in the basement the storm struck the barn with great force, causing it to crack and creak. Carey was heard to holler “whoa,” the barn collapsed under the force of the storm, and Carey was killed by the falling débris. Of the 6 or 7 men who were in the basement together, Carey was the only one killed, although some of the horses were killed.

The Commission was of the opinion that Carey was not, by reason of his employment and the circumstances surrounding it, exposed to any hazard which was peculiar to the work in which he was employed at the time, or which was rendered especially great because of his employment, and therefore found that “he did not die because of any injury which grew out of or was incidental to his employment, so as to entitle the applicant herein to any death benefit.” The application of the plaintiff was therefore denied and dismissed. This action was brought in the circuit court for Dane county to review the award, and the award of the Commission was affirmed. From the judgment of affirmance, plaintiff appeals.Fiedler, Fiedler, Jackson & Boardman, of Mineral Point, and E. C. Fiedler, of Beloit, for appellant.

Herman L. Ekern, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., and Bloodgood, Kemper & Bloodgood, of Milwaukee (A. K. Stebbins, of Milwaukee, of counsel), for respondents.

ROSENBERRY, J. (after stating the facts as above).

In his opinion the trial court said:

“Here, in my opinion, is a case where different reasonable inferences can be drawn from the undisputed facts, and the inferences drawn by the Commission, having a sufficient basis in the evidence, cannot be disturbed by the court, the findings having all the conclusive effect of findings on conflicting evidence. Anna Lewis v. Industrial Commission et al. (Wis.) 190 N. W. 101.”

[1] It is contended by the plaintiff that, the facts being undisputed, the question of whether or not the plaintiff is entitled to compensation is a question of law. This court early...