Massachusetts Bonding & Ins. Co. v. Industrial Commission
| Decision Date | 01 December 1959 |
| Citation | 99 N.W.2d 809,8 Wis.2d 606 |
| Parties | MASSACHUSETTS BONDING & INSURANCE CO. et al., Appellants, v. INDUSTRIAL COM'N and Lloyd Tate, by Edna Tate, his guardian, Respondents. |
| Court | Wisconsin Supreme Court |
Brennan, Brennan & Brennan, Milwaukee, for appellants.
John W. Reynolds, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., for respondent.
The only issue is whether Tate, the employee, was intoxicated and if so, whether that intoxication was the cause of the accident so as to reduce by 15 per cent whatever compensation Tate might be entitled to from the appellants. On the issue of intoxication, to reduce the amount of compensation, the employer has the burden of proving all facts necessary for such 15 per cent decrease. This burden is analogous to the rule which places the burden of proof on the employee when he seeks additional compensation of 15 per cent because an accident is caused by a violation of the commission's orders or the safe-place statute. Hipke v. Industrial Commission, 1952, 261 Wis. 226, 52 N.W.2d 401. Skelly v. Industrial Commission, 1949, 254 Wis. 315, 36 N.W.2d 58.
Sec. 102.58, 1955 Stats., 16 W.S.A. 564, provides in part: '* * * where injury results from the intoxication of the employe, the compensation, and death benefit provided herein shall be reduced 15 per cent.' This is a penalty clause and was added to the Workmen's Compensation Act by ch. 599, Laws of 1913. See Nutrine Candy Co. v. Industrial Commission, 1943, 243 Wis. 52, 9 N.W.2d 94; Gimbel Bros. v. Industrial Commission, 1938, 229 Wis. 296, 282 N.W. 78. Under this section the employee not only must be intoxicated, but the injury must result from the intoxication. This section recognizes an employee may be intoxicated and while in such condition receive an injury not caused by his intoxication.
Whether Tate was intoxicated and whether it caused the injury presented questions of fact for the commission to determine. Nekoosa-Edwards Paper Co. v. Industrial Commission, 1913, 154 Wis. 105, 141 N.W. 1013, L.R.A.1916A, 348; Gimbel Bros. v. Industrial Commission, supra. Since the employer had the burden of proof on this issue it must meet it. If the employer fails to convince the Industrial Commission, or if the commission has a legitimate doubt about the alleged intoxication or its causal relationship with the injury, then it is the duty of the commission to deny the claim for a decrease in the compensation. This is similar to the duty of the commission to deny a claim for compensation when the employee has not met his burden of proof in establishing the facts entitling him to compensation. Unruh v. Industrial Commission, 1959, 8 Wis.2d 394, 99 N.W.2d 182; Johnston v. Industrial Commission, 1958, 3 Wis.2d 173, 87 N.W.2d 822; Soper v. Industrial Commission, 1958, 5 Wis.2d 570, 93 N.W.2d 329; Beem v. Industrial Commission, 1943, 244 Wis. 334, 12 N.W.2d 42.
The only testimony on Tate's intoxication was given by Juda. He testified, 'I think he was drinking,' and 'It seems to me he was [intoxicated when he came to pick up his pay check].' Juda did not notice how Tate walked, but stated Tate's 'speech wasn't just like he was sober.' The appellant claims this testimony represents categorical statement of Juda's opinion that Tate was intoxicated seconds prior to his fall down the steps. Juda also testified that he had Tate endorse the check and he gave him cash, and that Tate didn't tell him where he was going when he left. Juda thought Tate had been drinking quite a bit and told Tate he was sorry to have to give him the check. Juda did not question whether Tate was in good enough shape to be able to go down the stairs and out the back door. He stated he could not be responsible if something might happen to Tate by the time he got out of the building. This evidence, the appellant contends, satisfies its burden of proof unless some rebuttal evidence were introduced.
However, Juda also testified as follows:
Apparently the only basis for Juda's opinion was that Tate's speech was not 'just like he was sober,' and Juda's knowledge of Tate and his drinking. There was no other observation upon which he based his opinion. Juda's testimony that Tate was intoxicated was far from convincing. Opinion evidence whether of an expert or a layman, is no better than the basis upon which it is founded. Unless the basis for a layman's opinion is...
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