M. & M. Realty Co. v. Industrial Commission

• Decision Date: 04 May 1954
• Citation: 64 N.W.2d 413,267 Wis. 52
• Court: Wisconsin Supreme Court
• Parties: M. & M. REALTY CO. et al. v. INDUSTRIAL COMMISSION et al.

Page 413

64 N.W.2d 413

267 Wis. 52

M. & M. REALTY CO. et al. v. INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

May 4, 1954.

Rehearing Denied June 18, 1954.

Action instituted by the plaintiffs M. & M. Realty Company and its insurance carrier Bituminous Casualty Corporation against the Industrial Commission, Everett Rankin, the Erton Lumber Company, and the latter's insurance carrier, the Hartford Accident & Indemnity Company, to review an order of the Industrial Commission awarding Rankin workmen's compensation against the plaintiffs.

This is the second time this same matter has come before his court, the first appeal being reported in Merton Lumber Company v. Industrial Comm., 1951, 260 Wis. 109, 50 N.W.2d 42. The facts are so fully set forth in the report of the prior appeal that they will not be repeated here, but only those facts occurring thereafter will be stated.

Upon the trial court receiving the remand of the record from this court following our first decision, the trial court, acting pursuant to the mandate of this court, set aside its prior judgment of April 20, 1951, and also set aside the prior findings and order of the Industrial Commission and remanded the record to the commission 'for further proceedings'. Thereupon, the commission proceeded to hold a further hearing and take additional testimony, and under date of May 15, 1952, the commission entered new findings of fact and a new order. By these new findings of fact the commission found that the industrial accident sustained by Rankin while in the employ of the Merton Lumber Company on February 3, 1947, resulted in no permanent disability; that Rankin sustained an injury to his back on March 10, 1949, while in the employ of M. & M. Realty Company; that the accident causing said latter injury arose out of his employment by that company; and that as a result of such accident Ranklin has sustained both temporary and permanent disability. The new order of May 15, 1952, provided as follows 'That respondent M & M Realty Company and Bituminous Casualty Company, its insurer, shall within ten days pay to the applicant, Everett Rankin, in person, Three Thousand One Hundred Ninety-Six and Sixty-Seven One-Hundredths Dollars ($3,196.67) in release of their liability herein with the exception of the reservation concerning expense of treatment as above stated,

'And it is further

'Ordered

'That the application be, and it hereby is dismissed as to respondent Merton Lumber Company and its insurer, Hartford Accident and Indemnity Company.'

The plaintiffs then instituted the within action in the circuit court to review said order, and under date of October 30, 1953, the trial court entered judgment confirming the order of the commission. From such judgment the plaintiffs have appealed.

Grelle & Schlotthauer, John F. Jenswold, Madison, for appellants.

Vernon W. Thomson, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., for Industrial Commission.

Quarles, Spence & Quarles, Milwaukee, Kenneth Grubb, Milwaukee, of counsel, for Merton Lumber Co. and insurance company.

L. A. Tarrell, Milwaukee, for respondent Rankin.

CURRIE, Justice.

The following three questions are presented on this appeal: (1) did the Industrial Commission have jurisdiction, upon the remand of the record to it from the circuit court following the decision of this court on the first appeal, to take additional testimony and make factual determinations different from those previously made; (2) was our decision on the first appeal res adjudicata on the issue of the plaintiffs' liability to Rankin; and (3) is there credible evidence, which, if unexplained, will sustain the finding that Rankin sustained an injury to his back on March 10, 1949, while in the employ of M. & M. Realty Company, and that the accident causing said injury arose out of his employment by said employer?

The statutory provisions covering judicial review of determination by the commission in workmen's compensation cases, and for remanding the record by the reviewing court, are to be found in secs. 102.23 and 102.24, Stats.

Sec. 102.23(1) provides that 'The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive' upon judicial review. Such statute further provides that an order or award of the commission 'shall be set aside only upon the following grounds:

'(a) That the commission acted without or in excess of its powers.

'(b) That the order or award was procured by fraud.

'(c) That the findings of fact by the commission do not support the order or award.'

This court has uniformly held that the commission acts 'in excess of its powers' if it makes a finding of fact not supported by the evidence. International Harvester Co. v. Industrial Comm., 1914, 157 Wis. 167, 174, 147 N.W. 53; and Borgnis v. Falk Co., 1911, 147 Wis. 327, 359, 360, 133 N.W. 209, 37 L.R.A.,N.S., 489. By our decision on the first appeal we determined that there was no credible evidence in the record to support the commission's finding that Rankin's 1947 accident, while in the employ of the Merton Lumber Company, caused the disability which disabled him from working two years later in 1949. Such determination on our part, under the express provision of sec. 102.23(1)(a), Stats., authorized this court to set aside the commission's order.

The same interlocutory order of the commission before us for review on the first appeal not only awarded Rankin compensation against Merton Lumber Company and its insurance carrier, but also dismissed his application against M. & M. Realty Company and its carrier, which latter determination, unlike the first, was supported by credible evidence. Sec. 102.23(1) is entirely silent on the subject of an order of the commission which makes more than one determination, and does not restrict the power of the reviewing court to setting aside only the portion of the order as to which the commission exceeded its powers. The statute is broad enough to be interpreted to mean that the court has power in its discretion to set aside the entire order and we so construe the statute. It is a necessary corollary of such construction that the court may also in its discretion set aside only the part of the order not supported by the evidence, and permit to stand the other portion that is sustained by the evidence.

As an appellate court, this court has the power to direct the circuit court to enter the same type of judgment that the statute authorizes the circuit court to enter in the first instance when the latter court reviews orders of the Industrial Commission. Sec. 102.24(1), Stats., provides in part as follows:

'Upon the setting aside of any order or award the court may recommit the controversy and remand the record in the case to the commission, for further hearing or proceedings; or it may enter the proper judgment upon the findings, as the nature of the case shall demand.' (Italics supplied.)

If under sec. 102.23(1) the court is authorized to set aside the order of the commission, there would seem to be no question but that under the above-quoted provision of sec. 102.24(1), this court has the power, through its mandate to the circuit court, to authorize the commission to undertake further proceedings in the nature of a new trial by directing that the circuit court remand the record to the commission 'for further proceedings'.

Our mandate on the first appeal read as follows: 'Judgment of the circuit court reversed and record remanded for further proceedings'. [260 Wis. 109, 50 N.W.2d 46.] After the record had been remanded by the circuit court to the commission, the commission assumed it was authorized in its discretion to conduct a further hearing and take further evidence and make entire new findings of fact. The plaintiffs and defendants on this appeal are at loggerheads as to whether the mandate of our decision on the first appeal authorized the commission to do this.

The plaintiffs contend that although our mandate on the first appeal did not allude to our opinion, resort must be had to the opinion in order to properly construe the words 'for further proceedings'. Stress is laid by plaintiffs upon the statement made 260 Wis. at page 114, 50 N.W.2d at page 44 of our opinion on the prior appeal wherein we stated:

'The conclusion that though the 1949 injury occurred on the job it was not caused by the job has evidence in its support and must be sustained on the authority of Employer's Mut. Liability Ins. Co. v. Industrial Comm., 1933, 212 Wis. 669, 250 N.W. 758, and Schmitt v. Industrial Comm., 1937, 224 Wis. 531, 272 N.W. 486, cited by the examiner.'

It is further pointed out by plaintiffs that the legal effect of the above-quoted statement in our former opinion was to determine that the portion of the order before us for review, which dismissed Rankin's application as to the M. & M. Realty Company and its carrier, was supported by credible evidence and therefore must stand. In view of this, it is urged that the only 'further proceedings' which the Industrial Commission was authorized to take under our mandate (insofar as the M. & M. Realty Company and its carrier is concerned) was to dismiss Rankin's application as to them.

If it had been the intention of this court that that part of the foregoing order before us on review, which dismissed the proceedings as to the plaintiff M. & M. Realty Company should stand, then our mandate should only have directed the trial court to affirm such part of the order, and to reverse only that part thereof relating to the Merton Lumber Company.

There is good authority for holding that in a situation where a mandate makes no reference to the opinion and is inconsistent with the opinion the mandate prevails. The United States supreme court in West v. Brashear, 1840, 14 Pet. 51, 10 L.Ed. 350, at page 351, said:

'There has been some discussion at the bar as to the principles by which a Circuit Court of the United...