Creamery Package Mfg. Co. v. Indus. Comm'n

• Decision Date: 11 April 1933
• Citation: 248 N.W. 140,211 Wis. 326
• Parties: CREAMERY PACKAGE MFG. CO. ET AL. v. INDUSTRIAL COMMISSION ET AL.
• Court: Wisconsin Supreme Court

211 Wis. 326

248 N.W. 140

CREAMERY PACKAGE MFG. CO. ET AL.

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

April 11, 1933.

Appeal from a judgment of the Circuit Court for Dane County; A. G. Zimmerman, Circuit Judge.

Action by the Creamery Package Manufacturing Company, employer, and another, against Nuna Forsyth, to set aside an award made by the Industrial Commission in favor of defendant for the death of her husband. From a judgment confirming the award, plaintiffs appeal.--[By Editorial Staff.]

Reversed, and cause remanded, with directions.

Action to set aside an award made by the Industrial Commission. The circuit court confirmed the award, and plaintiffs appealed.Riley & Ohm, of Madison, for appellants.

James E. Finnegan, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondents.

FRITZ, Justice.

Plaintiffs commenced this action to set aside an award by the Industrial Commission of a death benefit because of the death of L. A. Forsyth, on November 28, 1930, as the result of typhoid fever contracted during the period of his employment by the Creamery Package Manufacturing Company as a sales engineer. He resided at Waukesha, Wis., but his services in that employment took him away from his residence most of the time. He had to be at his employer's place of business in Chicago, and also call on its patrons and inspect their dairy products plants in a number of states. His work necessitated using such means of transportation and obtaining his food and lodging at such places as were available to the traveling public. He was ill with typhoid fever when he came home on November 21, 1930. As the typhoid incubation period is considered to be from seven to twenty-one days, he must have contracted the disease by reason of exposure at some time between October 31 and November 14, 1930. The principal question on this appeal is whether there is evidence to establish with requisite certainty that the exposure of Forsyth occurred at some place, at which he was, and at some time between October 31 and November 14, 1930, while he was performing service growing out of and incidental to his employment.

On the one hand, there is evidence which established that from October 31 to November 14, 1930, no cases were reported of persons who were ill in Waukesha with typhoid; and that he spent two days of each week end there during that period, while visiting at home with his family. There is also competent evidence which established that between October 31 and November 14, 1930, he was in Wisconsin, while at Milwaukee for three days, at Kenosha for two days, and Jefferson for one day, and while traveling between those cities and Waukesha and Chicago. In that connection it appears, from data compiled from printed copies of bulletins issued weekly by the United States Health Service, that no cases were reported of persons who were ill with typhoid in those cities, between October 31 and November 14, 1930, but that there were reported fifteen of such cases in the first week, and five of such cases in the second week of that period, of persons ill somewhere else in the state of Wisconsin. Likewise there was proof that between October 31 and November 14, 1930, Forsyth was in Chicago for three days on one occasion, and four days on a second occasion, and that, according to the weekly bulletin of the United States Health Service, there were reported seven cases during the week of that first occasion, and one case during the week of the second occasion, of persons who were ill with typhoid in that city. From October 28 to October 31, 1930, he was in Louisville, Ky., and Indianapolis, Ind., but no typhoid cases were reported in those cities during the week in which he was in those cities. However, it did appear from the United States Health Service bulletin that between October 31 and November 14, 1930, and while Forsyth, in addition to being in Chicago, Louisville, and Indianapolis, was of course also obliged to travel between those cities, in the states of Illinois, Kentucky, and Indiana, that there were reported for the first week, sixteen cases of typhoid in Illinois, nineteen cases in Kentucky, and fifteen cases in Indiana; and, for the second week, fifteen cases in Illinois.

On the other hand, there is no evidence whatsoever that at any time between October 31 and November 14, 1930, Forsyth had come in contact with, or been in the presence of, any typhoid infected person; or that he had been in any particular place where any such person had contracted typhoid; or that he had been exposed in any particular place in which he had been, to any such cases, or to typhoid fouled food, liquid, air, or other possible sources from which they arose. In view of the absence of any evidence in those respects, as to the source of the infection, the case at bar differs materially from the typhoid fever cases involved in Vennen v. New Dells L. Co., 161 Wis. 370, 154 N. W. 640, L. R. A. 1916A, 273, Ann. Cas. 1918B, 293,Scott & H. L. Co. v. Indust. Comm., 184 Wis. 276, 199 N. W. 159, 160; the smallpox case involved in Vilter Mfg. Co. v. Indust. Comm., 192 Wis. 362, 212 N. W. 641, 57 A. L. R. 627; and the actinomycosis case involved in Pfister & Vogel Leather Co. v. Indust. Comm., 194 Wis. 131, 215 N. W. 815. In each of those cases there was at least some evidence because of which it could reasonably be held that the source of infection could be determined to a...