Jordan v. Weinman

• Decision Date: 21 May 1918
• Citation: 167 Wis. 474,167 N.W. 810
• Parties: JORDAN ET AL. v. WEINMAN ET AL.
• Court: Wisconsin Supreme Court

167 Wis. 474

167 N.W. 810

JORDAN ET AL.

v.WEINMAN ET AL.

Supreme Court of Wisconsin.

May 21, 1918.

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

Consolidated actions by C. F. Jordan and another against Earl Weinman and the Industrial Commission of Wisconsin, to review awards in favor of Earl Weinman. From a judgment confirming the second award, plaintiffs appeal. Affirmed.

Appeal from a judgment confirming an award of the Industrial Commission. It appears that the commission made an award in favor of the defendant Weinman September 24, 1917, and an action was commenced by Jordan to review the same October 5, 1917; that the commission of its own motion set aside this award October 9, 1917, without notice to appellants, on the ground of mistake, and held a further hearing, at which all parties were present on October 26th, and on October 29th made new findings of fact and a larger award. Action was commenced to review their second award November 9, 1917, and the two actions were consolidated, and by the judgment the second award was confirmed. The plaintiff Jordan conducted a butcher shop, in which was a sausage machine run by a motor. The claimant Weinman is a boy 17 years of age living at his father's home in the vicinity. He was from time to time employed at the butcher shop as a helper. From September 19th to Thanksgiving Day, 1916, he worked every evening after school and all day Saturday; from Thanksgiving Day until the Christmas vacation he did not work there at all; from January 1st up to the time of the accident (June 4, 1917) he worked at various times, Saturdays mostly, though not every Saturday; sometimes 2 days in the week, whenever Jordan needed extra help or when some regular employé was off he was called in. On the day of the accident the applicant was running the sausage machine, and his hand was drawn in, cutting off all the fingers of the left hand.Richmond, Jackman, Wilkie & Toebaas, of Madison, for appellants.

Spencer Haven, Atty. Gen., and Winfield W. Gilman, Asst. Atty. Gen., for Industrial Commission.

Crownhart & Wylie, of Madison, for respondent Weinman.

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

[1] The claimant was called in at irregular intervals when extra help was needed or when a regular employé was absent, and worked at the regular business carried on by Jordan at the shop. Within the logic of the cases of Holmen Creamery Co. v. Industrial Com., 167 N. W. 808, and Gross & Bros. Co. v. Indus. Com., 167 N. W. 809 (decided herewith) it must be held that this employment was not casual.

A question as to the power of the commission to make the second award is raised, and it is claimed that it had no such power because: (1) There was no mistake within the meaning of the statute in the first award; (2) the bringing of the action to review the first award suspended the power of the commission to change that award; (3) it had only power to modify or change the first award, not to vacate the same, and such modification must be made within 20 days or not at all. The statute provides (section 2394--17, Statutes 1917) that:

“The commission may on its own motion, modify or change its order, findings, or award at any time within twenty days from the date thereof if it shall discover any mistake therein.”

It appears that on the first hearing no medical testimony was taken; the claimant testified that his hand was all right except for the loss of the fingers, and his attorneys supposed that the entire injury was disclosed by mere inspection of the hand. Fourteen days after the first award was made, however, the commission learned by a statement made by Dr. Fox, the attending physician, that there was a...