Lewis v. Indus. Comm'n

• Decision Date: 10 October 1922
• Parties: LEWIS v. INDUSTRIAL COMMISSION ET AL.
• Court: Wisconsin Supreme Court

178 Wis. 449

190 N.W. 101

LEWIS

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

Oct. 10, 1922.

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

Proceedings by Anna Lewis for an award under the Workmen's Compensation Law for the death of her husband, Joseph Lewis, against the Interstate Coal & Dock Company, employer. An order of the Industrial Commission denying an award was affirmed by the circuit court, and claimant appeals. Affirmed.

Plaintiff's husband sustained a sunstroke July 9, 1921, while working for the Interstate Coal & Dock Company at its coal yards in Green Bay. Compensation is sought by the widow. The Industrial Commission found that the death of the deceased was not due to a hazard incidental to or peculiar to his employment, and denied compensation. Upon appeal to the circuit court the order of the Commission was affirmed, and plaintiff appealed.

Doerfler, Crownhart, and Eschweiler, JJ., dissenting.Cady, Strehlow & Kaftan, of Green Bay, for appellant.

Quarles, Spence & Quarles, of Milwaukee (Arthur B. Doe, of Milwaukee, of counsel), for respondents.

Wm. J. Morgan, Atty. Gen., and W. W. Gilman, Asst. Atty. Gen., for Industrial Commission.

VINJE, C. J.

The Commission found these facts:

“Joseph Lewis had been employed by the respondent for many years. During the summer of 1921, and particularly during the time prior to July 7, 1921, there was a lull in the work at the coal yard, but the crew was kept together at ‘tinkering’ about the yard in order to keep the crew together. The evidence is quite convincing that on July 6th and also on the 7th the men did very little work. On the 6th, after putting in the full day but working only about an hour, the men were permitted to return and to leave their work at 4 in the afternoon and to come back to work in the evening in order to clean out the pockets in a coalboat. That night it appears that the deceased was somewhat fagged out and did not sleep well because of the extreme heat. On July 7th he came to work very early and seemed to be in good spirits. The crew did very little work that morning, only to clean out a car and do other little jobs about the yard. The men were engaged at that work possibly an hour, which in ordinary times would not have taken more than 20 minutes to do.

Both days, that is, the 6th and 7th, were extremely hot, as shown not only by the testimony of the men who worked in the yard, but also by the records of the weather bureau as taken at Green Bay. It was not only hot in the yards, but it was hot throughout the city, and was possibly somewhat cooler at the yards because of the fact that it was near the river. At any rate, it was no hotter at the yards than anywhere in the city of Green Bay on those days.

After eating their lunch on the premises, the men were engaged in tying down a ‘rig’ used in the loading and unloading of coal. After that was done, the deceased went to get a drink of water and became sick. He was assisted to the office of the respondent. At this point he vomited and was then taken home. It was found that he had suffered from a sunstroke and as a result thereof he died during the course of the day.”

The facts found by the Commission are sustained by the evidence. It further found:

“That the deceased was not injured as the result of any hazard of his employment, but met his death as a result of the hazard of the community.”

The trial judge in sustaining the order of the Commission said:

“The facts are not in dispute. The rule of law applicable to this case is likewise well settled. Compensation can be awarded only where the injury is one ‘resulting from a hazard pertaining to and inseparably connected with the industry or substantially increased by reason of the nature of the services' which the employee is required to perform. Scroeder & Daly Co. v. Ind. Comm., 169 Wis. 567, 568, 569, 173 N. W. 328. If exposure of deceased to hazard from sunstroke at the time and place of injury was not different substantially from that of ordinary out-of-door work, no award of compensation can be made. Hoenig v. Ind. Comm., 159 Wis. 646, 649, 150 N. W. 996, L. R. A. 1916A, 339.

The question whether the hazard was that incident to ordinary out-of-door work, or whether it was one which pertained to and was inseparately connected with and substantially increased by decedent's employment, was primarily a question of fact to be found by the Commission. The finding of the Commission that the deceased met his death as a result of a hazard which was the hazard of the community and not peculiar to the employment is amply sustained by the evidence, as will be seen by a very brief review thereof. Extreme heat prevailed everywhere. Persons in all walks of life suffered sunstroke in decedent's community during this hot spell. He was not required to perform heavy labor during the day on which he suffered the sunstroke. Work proceeded in a very leisurely fashion. The place of employment, because of its location on the river and away from the center of the city, was ‘naturally cooler than uptown.’ He did about two hours of light work during the day preceding his prostration. When not at work men ‘sat in the shade.’ ”

[1][2][3] We concur in what is said by the trial judge, and little need be added. By a long, unbroken line of decisions this court has held that the statutory mandate of section 2394--19 to the effect that “the findings of fact made by the Commission acting within its powers, shall in the absence of fraud, be conclusive, “means just what it says, and such findings will not be set aside if there is any support for them in the evidence. Northwestern Iron Co. v. Ind. Comm., 154 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366, Ann. Cas. 1915B, 877;Nekoosa-Edwards Paper Co. v. Ind. Comm., 154 Wis. 105, 141 N. W. 1013, L. R. A. 1916A, 348, Ann. Cas. 1915B, 995;International H. Co. v. Ind. Comm., 157 Wis. 167, 147 N. W. 53, Ann. Cas. 1916B, 330;Milwaukee Western F. Co. v. Ind. Comm., 159 Wis. 635, 150 N. W. 998;Hoenig v. Ind. Comm., 159 Wis. 646, 150 N. W. 996, L. R. A. 1916A, 339;City of Milwaukee v. Ind. Comm., 160 Wis. 238, 151 N. W. 247;Heileman Brewing Co. v. Shaw, 161 Wis. 443, 154 N. W. 631;Eagle Chemical Co. v. Nowak, 161 Wis. 446, 154 N. W. 636;First Nat. Bank v. Ind. Comm., 161 Wis. 526, 154 N. W. 847.

It is true that where only one inference can be reasonably drawn from undisputed facts a question of law arises, as in Radtke Bros. & Korsch v. Rutzinski, 174 Wis. 212, 183 N. W. 168; but where from undisputed facts different reasonable inferences can be drawn a finding by the Commission has all the conclusive effect of a finding on conflicting evidence. Milwaukee Western Fuel Co. v. Industrial Commission, 159 Wis. 635, 150 N. W. 998;Porter v. Industrial Commission, 173 Wis. 267, 181 N. W. 317. In the latter case where the evidence was not conflicting it was said:

“An examination of the evidentiary facts adduced before the Commission clearly permitted of the different inferences * * * under this state of the evidence their determination of that fact cannot be disturbed by the courts and must stand as the final conclusion in this case.”

Here different inferences could reasonably be drawn, hence that reached by the Commission is conclusive. It is urged that physical labor has a tendency to induce sunstroke. No doubt it has, but physical labor is not a hazard peculiar to a coalheaver. It is common to almost all kinds of labor. Mental exhaustion is also conducive to sunstroke; indeed, all forms of exhaustion tend to render a sunstroke more probable. The Commission had all the facts before it, and from them it drew the inference that the sunstroke suffered by the deceased was not a hazard peculiar to his employment. We cannot say that such an inference had no foundation in the evidence or was unreasonable, and therefore its conclusion must prevail.

Judgment affirmed.

ESCHWEILER, J., dissents.

DOERFLER, J. (dissenting).

From the majority decision of the court in this case, I respectfully dissent.

From July 1 to July 7, 1921, the weather was extremely hot, and the 6th and 7th days of July were the hottest of the year. The official thermometer of the United States Weather Bureau on the 6th day of July, 1921, at the city of Green Bay, Wis., registered 81° at 7 a. m., 101° at 12 m., and 96° at 4 p. m., 95° at 7 p. m., and 80° at midnight. On the 7th of July the same thermometer registered 78° at 7 a. m., and thereafter gradually rose until 12 m., when it registered 99°>>. At about 2 p. m. there was a sudden drop, due to a storm.

On July 6th the deceased worked from 7 a. m. until 12 m., and from 12:30 p. m. until 4 p. m., and from 7 p. m. until 1:30 a. m., of the following morning. On the 7th he began work at 7 o'clock a. m., and continued until 12 m., returned to his work at 12:30, continuing until about 1 p. m., when he was afflicted with a sunstroke, from the effects of which he shortly thereafter died.

On the 6th of July the deceased was engaged in cleaning cars and in work in and about the defendant's coalyard, and from 7 o'clock in the evening of that day until 1:30 of the following morning, he was employed in shoveling coal in the hold of a large boat. On the 7th of July he was engaged in cleaning cars and in attending to the loading of several cars, and after resuming work at 12:30 p. m. of that day, up to the time he received the sunstroke, he was engaged in tieing down the bridge, which work consisted in putting four wedges under each one of the trucks where the truck runs on the rail.

The evidence also shows that a very large portion of this work was done while the deceased was subjected to the sun's rays, and that while doing the work in the hold of the boat, the heat was not only excessive, but the atmosphere was close. The deceased and the other men employed were permitted to work leisurely, and the treatment of the men while at work, on the part of the employers, during this excessive...