Schaefer & Co. v. Eicher

• Decision Date: 09 December 1924
• Citation: 185 Wis. 317,201 N.W. 396
• Court: Wisconsin Supreme Court
• Parties: SCHAEFER & CO. ET AL. v. EICHER ET AL.

185 Wis. 317

201 N.W. 396

SCHAEFER & CO. ET AL.

v.EICHER ET AL.

Supreme Court of Wisconsin.

Dec. 9, 1924.

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

Action by Schaefer & Co. and others against Frank Eicher and others, copartners doing business as Herman Sutter Granite & Marble Company and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

This was an action to set aside an award of the Industrial Commission. Judgment was entered affirming the award of the Commission, and plaintiffs appealed.

The award of the Commission was based on the Compensation Act as amended by chapter 457 and chapter 668, Laws 1919, which provide that the provisions of the Compensation Act (sections 2394--1 to 2394--31, inclusive) “are extended so as to include, in addition to accidental injuries, all other injuries, including occupational diseases, growing out of and incidental to the employment.”

The appellants assign as errors: That the Commission is without authority to enter an award assessing various employers each with a portion of the total liability; that if the law in fact granted such power, it would be unconstitutional; that the award does not include all of the employers and insurance carriers contributing to the incapacity; that the award is not based upon facts; and, that there is no evidence justifying the imposition of the liability as determined by the Commission.Roehr & Steinmetz, of Milwaukee, for appellants.

H. L. Ekern, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., F. C. Seibold, Law Examiner, of Madison, and Brown, Pradt & Genrich, of Wausau, for respondents.

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

The award of the Industrial Commission was entered against three employers, each a separate amount, and appellants' first contention is that the Commission is without authority to find total compensation, and then divide the liability between several employers.

[1] This is a case of first impression. We are cited to no precedent in this country for the action of the Commission. Lees v. Waring & Gillow, 127 L. T. J. 498, 2 B. W. C. C. 474, an English case, is cited as authority for the action of the Commission, but it has no bearing. There the act provided for apportioning compensation among employers of the employee for one year prior to the incapacity, and there the employment was not concurrent, as here, but successive. Here authority of the Commission is statutory, but the statutes are remedial, and are to be liberally construed to carry out their purpose of placing the cost of industrial accidents and diseases upon the industry in which they occur as a result of the industry. This principle has been too often affirmed to need citation.

[2] The respondent employee, Frank Eicher, was employed as a tool sharpener concurrently by three separate employers, to which he gave each a portion of his time. His employers were all granite cutters. The industries required him to work in air permeated with granite dust, which he breathed into his lungs. This resulted in producing in the workman tuberculosis of the lungs which incapacitated him for labor. The Commission found the date of such incapacity to have been December 8, 1922. It also found, in effect, that Eicher's employment as such tool sharpener, from 1919 to the date of his incapacity, gradually broke down his resistance to the disease which resulted as stated. As has been said, during the time the disease had been incubating, Eicher had been employed part time by each of three employers. Each employer was engaged in the same kind of business, and the conditions of employment were substantially the same in each case. The Commission found Eicher totally incapacitated as of December 8, 1922, and made its temporary award pending the outcome of the disease. It apportioned pro rata the amount due and to become due to Eicher among the three employers, on the basis of the number of hours the employee worked during the period stated. This apportionment corresponded to the exposure of the employee to the causation of the disease. It cannot be contended that the award is not fair and equitable. It is not so contended, as we understand the position of the appellants.

The objection to the award is lack of authority under the law to so apportion the award. The Commission is empowered to find the facts. It found the facts as stated. Having found the facts, the award...