City of Milwaukee v. Indus. Comm'n

• Decision Date: 02 March 1915
• Citation: 160 Wis. 238,151 N.W. 247
• Parties: CITY OF MILWAUKEE v. INDUSTRIAL COMMISSION ET AL.
• Court: Wisconsin Supreme Court

160 Wis. 238

151 N.W. 247

CITY OF MILWAUKEE

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

March 2, 1915.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by the City of Milwaukee against the Industrial Commission and Amalia Torney, to test the validity of an award under the Workmen's Compensation Act. Judgment for defendants, and plaintiff appeals. Affirmed.

Action to test the validity of an award under the Workmen's Compensation Act. The Industrial Commission found:

“That on the 29th day of May, 1912, Julius Torney and the respondent city were both subject to the provisions of chapter 50, Laws of Wisconsin 1911; that on said 29th day of May, 1912, and for a year and more prior thereto, the said Julius Torney had been in the employ of the respondent as principal of its Fifth Street public school; that his salary was $175 per month, and his annual earnings were in excess of $750 per annum, upon which the maximum disability compensation and benefits may be based; that on said date, while engaged in performing services for the respondent growing out of and incidental to his employment, he sustained an accident resulting in his personal injury, from the effects of which he was totally disabled, and from which he died on the 27th day of December, 1912; that such injury and his subsequent death were proximately caused by the accident and were not the result of willful misconduct; that no written notice of the time and place of the accident was given to the respondent; that the failure to give such notice was not intended by those required to give the same to mislead the respondent, and in fact did not mislead the said city; that the applicant was the wife of said Julius Torney and was living with him as such at the time of the accident and to and including the time of his death; that respondent is liable for compensation and death benefit to the full sum of $3,000; that, following the injury, the respondent paid $1,495.69 to Julius Torney and the applicant; that $201.44 of this amount represents wages earned by Torney prior to the date of his injury, and $68 represents the amount deducted from his wages prior to that date and paid into the teachers' retirement fund of respondent city; that the balance of $1,226.25 represents the amount which Torney would have earned from the date of his injury to that of his death, provided he had been teaching, and including also $14 deducted by respondent and paid into its teachers' retirement fund during such period; that this $1,226.25 should be applied by applicant in partial discharge of respondent's liability above, and does discharge it for the period of 2 years and 27 weeks from the date of the injury, or until December 4, 1914; that, except as otherwise ordered, the further liability of $1,773.75 would be payable by respondent to applicant at the rate of $9.37 per week, commencing December 4, 1914; that the interest of all parties will be best conserved by a lump sum payment of such balance at its true present worth, computing interest at the rate of 3 per cent. per annum; and that the true present worth thereof at this date is $1,640.34.”

From an award in accordance with the findings, the city of Milwaukee appealed to the circuit court for Dane county. It sustained the award of the Industrial Commission, and from its judgment plaintiff appealed to this court.Daniel W. Hoan, City Atty., and E. L. McIntyre, Asst. City Atty., both of Milwaukee (Irving A. Fish, of Milwaukee, of counsel), for appellant.

W. C. Owen, Atty. Gen., Winfield W. Gilman, Asst. Atty. Gen., and Lenicheck, Robinson, Fairchild & Boesel, of Milwaukee (Harold Metcalf, of Milwaukee, of counsel), for respondents.

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

In this case the court is asked to set aside three findings of fact made by the Industrial Commission and confirmed by the circuit court upon appeal. These findings are: (1) That deceased, at the time of the accident, was performing a service growing out of and incidental to his employment; (2) that the injury received at the time of the accident proximately caused his death; and (3) that the city was not misled by a failure to give notice of the injury.

[1] As a preliminary to a determination of each one of the questions raised, it is proper to again call attention to the fact that, in the absence of fraud, the findings of fact made by the Industrial Commission are conclusive, and its order or award can be set aside only upon the ground (1) that it acted without or in excess of its powers; (2) that it was procured by fraud; or (3) that its findings of fact do not support the order or award. In the present case the last two grounds are not relied upon. But it is claimed the Commission acted without or in excess of its powers by making findings having no support in the evidence. If this be so, then there is an infirmity in the award that can be successfully reached and remedied upon appeal. International H. Co. v. Industrial Commission, 157 Wis. 167, 147 N. W. 53. But it should be borne in mind that if, in any reasonable view of the evidence, it will support either directly or by fair inference the findings made by the Commission, then such findings are conclusive upon the court. Borgnis...