Hipke v. Badger Paper Mills

• Citation: 52 N.W.2d 401,261 Wis. 226
• Parties: HIPKE, v. BADGER PAPER MILLS, Inc., et al.
• Decision Date: 04 March 1952
• Court: United States State Supreme Court of Wisconsin

Page 401

52 N.W.2d 401

261 Wis. 226

HIPKE, v. BADGER PAPER MILLS, Inc., et al.

Supreme Court of Wisconsin.

March 4, 1952.

The plaintiff, Hipke, was injured February 23, 1945, in an industrial accident in the plant of defendant, Badger Paper Mills, Inc. He received compensation for permanent total disability and made application that this be increased 15% as provided by sec. 102.57, Stats. which reads: 'Where injury is caused by the failure of the employer to comply with any statute or any lawful order of the commission, compensation and death benefits as provided in this chapter shall be increased fifteen per cent.' He charged that his employer, the defendant, had violated Orders 14 and 5402 of the industrial commission and also violated certain provisions of secs. 101. Stats., the safe-place statute, and that his injuries were caused by such violations.

These orders and the material parts of the statute are as follows:

Order 14. 'Passageways and Working Spaces. (a) Adequate passageways and gangways shall be provided * * *.'

Order 5402. 'Number and Location of Exits * * *. Exits in all buildings of this classification shall be so located and distributed so as to afford the best possible egress.'

'Sec. 101.01(11) The term 'safe' or 'safety' as applied to an employment or a place of employment * * * shall mean such freedom from danger to the life, health, safety or welfare of employes or frequenters, * * * as the nature of the employment, place of employment, * * * will reasonably permit.'

'Sec. 101.06 * * *. Every employer shall furnish employment which shall be safe for the employes therein and shall furnish a place of employment which shall be safe for employes therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employes and frequenters. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building, and every architect shall so prepare the plans for the construction of such place of employment or public building, as to render the same safe.'

'Sec. 101.07(1) No employer shall require, permit or suffer any employe to go or be in any employment or place of employment which is not safe, and no such employers shall fail to furnish, provide and use safety devices and safeguards, or fail to adopt and use methods and processes reasonably adequate to render such employment and place of employment safe, and no such employer shall fail or neglect to do every other thing reasonably necessary to protect the life, health, safety or welfare of such employes and frequenters; and no employer or owner, or other person shall hereafter construct or occupy or maintain any place of employment, or public building, that is not safe, nor prepare plans which shall fail to provide for making the same safe.'

Hipke was employed by the defendant, Badger Paper Mills, Inc., in the manufacture of paper. His duties required him to be in a passageway adjoining 'blowpits'. The pits with which we are concerned are numbered 3 and 4. Two doors or ports open into pit 3. Two stairways were provided for exit from the passageway. In the process of making paper, pulp, after being treated with acid and cooked with steam under pressure at a temperature of about 280 degrees, is blown into the pits. To prevent the escape of steam and acid into the passageway it was necessary that the ports be closed.

On the day in question claimant was working in the passageway adjoining pit 4 adjacent to pit 3. Preparatory to blowing into pit 3 a fellow employee came into the passageway to close the ports on pit 3. He saw claimant and told him that they were about to blow into pit 3. He then locked one of the ports but forgot to lock the other. As a result, when the material entered the pit, steam and fumes escaped through the open port into the passageway. Claimant was unable to avoid this discharge and to reach the stairway. He was severely burned.

Two stairways, one leading down and the other up from the passageway occupied by claimant, were provided for exit.

The industrial commission found: 'That the applicant's injury of February 23, 1945, and the consequent disability resulted from inhalation of acid fumes which suddenly filled the room in which the applicant was working; that such fumes filled the room by way of an open door which should have been closed by a fellow worker in the regular course of his duties; that failure to close the door was the proximate cause of applicant's injury; that no ventilating system would have been adequate to carry off the fumes released through an open door; that applicant's injury did not occur by reason of respondent's failure to comply with any safety order of the Industrial Commission or with the requirements of the safe place statute.'

The commission's order dismissed Hipke's application for increased compensation. He brought an action for review in the circuit court for Dane county which, on May 16, 1951, entered judgment confirming the commission's order. The appeal is from that judgment.

Gold & McCann, Milwaukee, for appellant.

Vernon W. Thomson, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., for respondent.

GEHL, Justice.

Appellant complains that the commission's 'findings of fact' do not comply with the requirements of sec. 102.18(1), Stats. which direct: 'After final hearing the commission shall make and file its findings upon all the facts involved in the controversy, * * *.'

He submits that specific findings should have been made relating to exits, the procedure of blowing the pits, and other matters with respect to which he claimed the defendant had violated either safety orders or statute. He contends that the findings, as set forth above, are merely conclusions of law.

In Tesch v. Industrial Commission, 1930, 200 Wis. 616, 229 N.W. 194, 197 we said: 'We do not say that formal findings such as should be filed by a circuit judge in cases tried by the court are required. There should be at least an informal recital of the facts which the commission finds to be established. For some years a document designated a memorandum accompanied the so-called findings of fact. That answered the requirements very well in most cases. * * *' There is such a memorandum in the...