Salem v. Indus. Comm'n of Wis.

• Decision Date: 11 January 1916
• Parties: VILLAGE OF WEST SALEM v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

162 Wis. 57

155 N.W. 929

VILLAGE OF WEST SALEM

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

Jan. 11, 1916.

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

Action by the Village of West Salem against the Industrial Commission of Wisconsin and Alice Voeck to set aside an award of the commission requiring plaintiff to pay the last-named defendant $3,000 on account of the death of her husband. From a judgment setting aside the award and remanding the cause to the commission for further proceedings, both parties appeal. Affirmed.

This is an action to set aside an award of the Industrial Commission requiring the plaintiff village to pay to Alice Voeck $3,000 on account of the death of her husband, William Voeck, caused by an accidental injury while in the employ of the plaintiff village. The circuit court set aside the award of the Industrial Commission and remanded the cause to the commission for further proceedings. Both parties appeal from this judgment of the circuit court.

William Voeck was a resident of the village of West Salem at the time of his death. One William Jones had left the village to escape criminal prosecution. He returned in about a year. On or about May 2, 1914, a warrant, which had been previously issued by a justice of the peace and made returnable before the county court of La Crosse county, was put into the hands of the deputy sheriff, Weingarten, who attempted to take Wm. Jones into custody. Mr. Wilcox, the village marshal of West Salem, met Jones and Weingarten immediately after Weingarten took Jones into custody, and was informed by Weingarten that Jones did not wish to go to the village lockup. Wilcox suggested that Jones might give bail for his appearance, and they applied to Justice Nelson for release of Jones on his bond; but the justice disclaimed any authority to release Jones from custody. The parties then applied to Justice Phillip, who also refused to take any steps to release Jones. Jones became angered at this refusal and, drawing a gun, threatened Mr. Phillip. The deputy sheriff prevailed upon Jones not to shoot and to leave Justice Phillip's house, but when Phillip closed the house door Jones made angry threats and broke the glass in the door and again threatened Phillip. Weingarten did not succeed in restraining Jones in this disturbance of the peace, whereupon Wilcox stated to Weingarten that they must do something and that he would get help and started to get assistance. Wilcox met Voeck and told him that Jones had a gun and that Weingarten needed his help and proceeded to call others to assist in suppressing Jones' disturbance and violation of the criminal law. When Voeck got within a few feet of Jones and Weingarten, Jones suddenly drew his revolver and shot Voeck, who died a short time thereafter.

Voeck was employed as a plumber in the village of West Salem and earned about $18 per week. The Industrial Commission based the award of $3,000 upon Voeck's earnings as a plumber. The circuit court upon appeal held the village to be liable under the compensation act, but held that the award as fixed by the Industrial Commission was erroneously based upon Voeck's average earnings as a plumber, and held that compensation must be based upon earnings in “the same or a similiar” or the “most similar employment” to that in which the deceased was engaged at the time of the injury, namely, that of a policeman of the village, and remanded the cause to the commission for further proceedings. From such judgment both of the parties appeal.Baldwin & Bosshard, of La Crosse, for plaintiff.

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

Grotophorst, Evans & Thomas, of Baraboo, for defendant Voeck.

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

The inquiries are: Was the deceased, Voeck, at the time in question assisting the village marshal in the execution of his duties in suppressing a disturbance of the peace and aiding the marshal and the deputy sheriff, Weingarten, in arresting Jones for violating the law of the state; and was he, if so engaged, employed as a policeman of the village within the provisions of the workmen's compensation...