Radtke Bros. v. Indus. Comm'n of Wis.

• Decision Date: 03 May 1921
• Citation: 183 N.W. 168,174 Wis. 212
• Parties: RADTKE BROS. ET AL. v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

174 Wis. 212

183 N.W. 168

RADTKE BROS. ET AL.

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

May 3, 1921.

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

Proceeding by Herbert Rutzinski under the Workmen's Compensation Act (Laws 1911, c. 50) to obtain compensation for personal injuries, opposed by Radtke Bros. and others. An award of the Industrial Commission granting compensation was sustained in an action to set it aside, and plaintiffs in said action to set aside appeal. Judgment reversed, and cause remanded, with instructions to set aside the award.

Action to set aside an award of the Industrial Commission granting compensation for injuries. From judgment sustaining the award plaintiffs appeal.

The applicant, a boy 14 years of age at the time of the injury, had been employed for a week in appellants' printing and bookbinding establishment. He had a permit to work at that age. The evidence established without dispute that his duties were to run errands and to help at other odd jobs, such as helping girls fold sheets of paper and pounding books recently bound. His errands were mostly in the shop, but occasionally outside. He evidently understood the scope of his duties. His instructions were to keep away from all machines, and he knew that he should do so. He was never asked to do any work on a machine.

On the floor of the establishment where his duties kept him most of the time was a paper cutting machine. The evidence differs whether his work took him very close to this machine; at any rate, there was no danger from mere proximity. The superintendent at one time saw the boy using a hand machine for cutting pasteboard and ordered him away, warning him that he might get hurt. On the morning of the accident the boy had watched a man operate the paper cutting machine. He thought he could do it himself, and wanted to make a tablet for himself to take home, so later, when he was not observed by anyone in authority, he used the machine to cut the edges of his tablet. He succeeded. Still later he tried to use it again to finish the tablet, and this time cut off the ends of two fingers.

The Commission found that the injuries were sustained while in the employ of the appellants performing services growing out of and incidental to the employment, proceeding upon the theory that a boy of that age would naturally be attracted to machinery, and that the employer should provide better supervision to prevent injury resulting therefrom. Appellants' contention is that this finding is contrary to the evidence and to law, and that the Commission consequently acted without and in excess of its powers in making the award.

The trial court sustained the award upon the theory that the boy who is impelled to momentarily leave his assigned task to satisfy his desire to see how a machine works is no more outside the scope of his employment than the adult who responds to the desire to rest, to warm himself, or to refresh himself with food.

Brown, Pradt & Genrich, of Wausau, for appellants.

William J. Morgan, Atty. Gen., and W. W. Gilman, Asst. Atty. Gen., for respondents.

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

[1] One of the claims made by the respondent is that the boy was employed in violation of the child labor law. A letter in the files shows that this matter was not overlooked by the Commission, although the subject is not discussed either in the decision of the Commission or that of the trial court. It is conceded that there was a permit regularly issued under the statute. It is hardly to be presumed that the officials granting such permit neglected their duty or that they regarded the establishment of appellant or the employment as dangerous to life or limb.

Although it is argued that the applicant worked near this machine, neither the Commission nor the trial court so found. It is perhaps true that most of his work was on the floor on which the machine was located, but there is no claim that in performing the work assigned to him there was any danger. The case is not at all analogous to that of Reiten v. J. S. Stearnes Co., 166 Wis. 605, 165 N. W. 337, and Westerlund v. Kettle River Co., 137 Minn. 24, 162 N. W. 680, and other cases cited by respondents' counsel where the work to be performed was itself hazardous. In the present case there was no danger whatever in the employment unless the claimant disobeyed instructions and interfered with machinery he was warned not to touch. Neither the Commission nor the trial court seemed to regard the employment as in violation of the statute and rules of the Commission. The statute and regulations require many precautions before such permits can be issued. Before they are granted the agents of the Commission make full investigation and take cognizance of many facts, among others the name of the employer and the nature of the employment. We do not consider the claim that the employment was unlawful well taken.

[2] A question of greater difficulty is this: Did the accident happen while the claimant was performing services growing out of and incidental to the employment? In their able brief attorneys for respondent frankly say:

“In these proceedings under the Compensation Act it is wholly immaterial whether either the employer or the servant was guilty of negligence.”

And yet most of the cases cited by them are common-law actions where negligence and contributory negligence were the issues tried. It must be borne in mind that the issue in this case is not one of negligence or contributory negligence. Under the act a defendant may be mulct in damages, although he has used the utmost care. A claimant may recover, although he has been clearly guilty of contributory negligence. The crucial question in this case is whether at the time of the accident the employee was “performing service growing out of and incidental to his employment.”

[3][4] In determining this question we fully recognize that the act must be given a broad liberal construction, to the end that its beneficent purpose should be fully carried out. Although there was vigorous opposition to the statute before its enactment, it has been so well administered by the Commission that it now meets with general approval. This court has not applied technical rules in determining whether in given cases the accident was incidental to the employment. Awards have been approved where the injury happened while claimants were going to or returning from their work. Milwaukee v. Althoff, 156 Wis. 68, 145 N. W. 238, L. R. A. 1916A, 327. A claimant was allowed to recover while temporarily resting and warming himself in the intervals between the coming of cars (N. W. Iron Co. v. Ind. Comm., 160 Wis. 633, 152 N. W. 416), and when sleeping on the premises of the owner when no other place to sleep was furnished (Holt L. Co. v. Ind. Comm., 168 Wis. 381, 170 N. W. 366), and where the employee during the lunch hour accidentally fell into a river while going to a...