Milwaukee W. Fuel Co. v. Indus. Comm'n of Wis.

• Decision Date: 09 February 1915
• Citation: 159 Wis. 635,150 N.W. 998
• Parties: MILWAUKEE WESTERN FUEL CO. v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

159 Wis. 635

150 N.W. 998

MILWAUKEE WESTERN FUEL CO.

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

Feb. 9, 1915.

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

Petition by Barbara Hartmann, before the Industrial Commission of Wisconsin, for an award of compensation, against the Milwaukee Western Fuel Company, for the death of her husband, George Hartmann, while in the Fuel Company's employ. The Commission made an award in favor of petitioner, and the Fuel Company appealed to the circuit court, where it was set aside, and Mrs. Hartmann appeals. Reversed and remanded, with directions to enter judgment affirming the award of the Commission.

Marshall, J., dissenting.

This is an action by the plaintiff on an appeal from the finding of the Industrial Commission of the state of Wisconsin, which Commission awarded the defendant Barbara Hartmann compensation to be paid by the plaintiff for the death of her husband, George Hartmann, which occurred while he was in plaintiff's employ.

On May 29, 1913, George Hartmann was in the employ of the plaintiff; he met his death by drowning in the Menominee river; he was a man 56 years of age and had worked for the plaintiff company a number of years. The plaintiff's premises for conducting its fuel business were located on the Menominee river. On the morning of May 29th, Hartmann left home to go to work, and, finding it was raining, he returned and got an umbrella. About 10 o'clock of the forenoon of that day the employés took a short time off for lunch, as was the usual custom. There were two or three toilets upon the premises, and one of them was situated a few feet from the river front near the generator room. In order to reach this toilet, men walk along a narrow passageway about 7 feet wide between the buildings to the river and thence along the river a distance of about 220 feet. This toilet room was used by the employés of the company. During the lunch period on the 29th of May, one of the employés, hearing a splash, looked out of the window and saw Hartmann in the water. He appeared to be making no struggle. Assistance was rendered him as soon as possible, but nothing could be done to save him. It was about three-quarters of an hour from the time the splash was heard until the body was recovered. The plaintiff introduced evidence tending to show that Hartmann was demented; that he had hallucinations or delusions. Clearly he had aberrations of some kind, but the testimony shows that he was perfectly sane about his work.

The Industrial Commission awarded compensation to the defendant Barbara Hartmann, amounting to $2,259.11, payable in weekly installments of $7.23, considering interest at 3 per cent. per annum.

Upon appeal the circuit court set aside and vacated this order of the Industrial Commission and awarded costs against the defendant Barbara Hartmann. The circuit court held that it is incumbent on a claimant for compensation on account of the death of an employé, under the Workmen's Compensation Act, to show that death was caused by accident, and that it resulted while the employé was in service growing out of or incidental to his employment. The court also held that the evidence “is as equally consistent with death by suicide as by accident. * * * The Commission seems to base its findings upon the presumption against suicide,” and then determined the case against the claimant upon the following ground:

“The court concludes that there is no evidence to support the findings that death was proximately caused by accident, and that therefore the award of the Commission must be vacated and set aside.”

Judgment awarded accordingly. This is an appeal from such judgment.

Michael Levin, of Milwaukee, for appellant.

W. C. Owen, Atty. Gen., and W. W. Gilman, Asst. Atty. Gen., for defendant.

Doe Ballhorn Wilkie, of Milwaukee, for respondent.

SIEBECKER, J. (after stating the facts as above).

[1] The contention that the parties were not subject to the Workmen's Compensation Act must fail. The record contains a copy of plaintiff's notice to the Industrial Commission, dated November 30, 1912, accepting the provision of the act. The record also discloses that the plaintiff took part in the proceedings before the Commission without claiming exemption. It seems that plaintiff throughout the hearing acted upon the fact that it was subject to this law. We see no force in the claim that the Commission had no grounds for concluding that the parties before it had not accepted the provisions of the Compensation Act, and that it did not appear that the Commission had jurisdiction in the matter.

[2] It is contended that the record does not sustain the commission's finding:

“That at the time of said accident resulting in the death of said George Hartmann, by drowning, said George Hartmann was performing services growing out of and incidental to his employment.” Steers v. Dunnewald, 85 N. J. Law, 449, 89 Atl. 1007.

The circuit court did not reverse this finding for want of any evidence to sustain it.

Section 2394--19, Stats. 1913, provides:

“The findings of fact made by the Commission acting within its powers shall, in the absence of fraud, be conclusive; and the order or award * * * shall be subject to review only * * *” by action against the Commission in the Dane county circuit court. “Upon such hearing, the court may confirm or set aside such order or award, and any judgment which may theretofore have been rendered thereon; but the same shall be set aside only on the following grounds: (1) That the Commission acted without or in excess of its powers. (2) That the order or award was procured by fraud. (3) That the findings of fact by the Commission do not support the order or award.”

In the case of Borgnis v. Falk Co., 147 Wis. 327, 133 N. W. 209, 37 L. R. A. (N. S.) 489, the court, in speaking of the effect of the Commission findings of facts, stated:

“We regard the expression ‘without or in excess of its powers' as substantially the equiva lent, or at least as inclusive, of the expression, ‘without or in excess of its jurisdiction,’ as those words are used in certiorari actions to review the decisions of administrative officers or bodies.”

In International Harvester Co. v. Industrial Commission, 157 Wis. 167, 147 N. W. 53, the Borgnis and other cases are referred to as illustrative of the interpretation this court has given this part of the act, and that the rule governing courts in certiorari cases is controlling here, and further declares:

“The rule in certiorari cases is that, if in any reasonable view of the evidence it will support the conclusion arrived at, such conclusion will not be disturbed for want of support in the evidence. If, however, the finding has no support in the testimony, there was no jurisdiction to make it”--citing Helena Hoenig v. Industrial Commission and Lindauer-O'Connell Co., 150 N. W. 996, decided herewith.

[3] Testing the instant case under this rule, we are of the opinion that the facts warrant the inference that Hartmann, on the day of his drowning, went to his employment as usual and performed his services until the forenoon lunching hour, and then partook of a lunch on the premises, as was customary in the conduct of plaintiff's business; that he walked from his lunching place to the margin of the river, and thence along a passageway between plaintiff's building and the river's edge, going toward...