Great N. Ry. Co. v. King

• Decision Date: 13 February 1917
• Citation: 161 N.W. 371,165 Wis. 159
• Parties: GREAT NORTHERN RY. CO. v. KING ET AL.
• Court: Wisconsin Supreme Court

165 Wis. 159

161 N.W. 371

GREAT NORTHERN RY. CO.

v.KING ET AL.

Supreme Court of Wisconsin.

Feb. 13, 1917.

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

Action by the Great Northern Railway Company against Barney King and another to set aside an award. From judgment confirming the award, plaintiff and named defendant appeal. Affirmed on both appeals.

The defendant, King, was awarded the sum of $562.20 by the Industrial Commission for a serious injury to his right eye by an accident occurring while employed by the plaintiff as janitor in its general office at Superior, Wis. While he was breaking up coal for the furnace with an axe, a small splinter flew off and struck him in the eye. He claimed double the compensation actually awarded to him because (as the commission found) there was practically a total loss of vision of the eye, but the commission awarded him compensation on the basis of 50 per cent. diminished vision because of the admitted fact that the eye prior to the accident had only one-half of ordinary vision, owing to congenital causes. The plaintiff brought this action to set aside the award, and after trial judgment was entered confirming the award, from which judgment the railway company appeals. King brought no action to increase the award, but has appealed from the judgment in this action, and contends that the circuit court should have awarded him compensation for total loss of vision of the eye, and that such relief may be given him in the present action.J. A. Murphy, of Superior, for appellant.

Hanitch & Hartley, of Superior, for respondent King.

W. C. Owen, Atty. Gen., and W. W. Gilman, Asst. Atty. Gen., for respondent Industrial Commission of Wisconsin.

WINSLOW, C. J. (after stating the facts as above).

The appellant railway company claims a reversal: (1) Because it was not under the Workmen's Compensation Law at the time of the injury; and (2) because the claimant was engaged in interstate commerce at the time, and hence the compensation law does not apply under the terms of subdivision 3, § 2394--8, Statutes Wisconsin. These contentions will be briefly considered.

I. The Workmen's Compensation Law at the time of the accident provided, in substance, that on and after September 1, 1913, every employer of four or more employés should be deemed to have elected to accept the law unless prior to that date he had filed a notice of his election not to accept the law.

[1] The claim is made in the present case that such a notice was filed, but the evidence is undisputed to the effect that the only notice filed was a notice dated August 30, mailed at Superior September 2, and received by the commission September 3, 1913. By no stretch of the imagination can this be called a notice filed “prior” to September 1st. Statutes allowing amendment in court proceedings have not the remotest application. The Legislature has definitely fixed the time when the act in question must be done, and the court is powerless to extend it.

[2] It is argued that, if the notice was not effective as an election, it should be construed as a withdrawal under the provisions of the Compensation Law which allow an employer to withdraw himself from the operation of the law at the end of the year. The notice says simply that the railway company “elects not to accept the provisions” of the law. Non constat that it wished to withdraw when it ascertained that its notice of nonacceptance was filed too late. To construe it as a withdrawal would be doing violence to plain language. It says no such thing.

[3] II. Many cases, state and federal, are cited to us upon the question whether King...