Van Domelon v. Town of Vanden Broeck

• Citation: 249 N.W. 60,212 Wis. 22
• Court: Wisconsin Supreme Court
• Decision Date: 06 June 1933
• Parties: VAN DOMELON v. TOWN OF VANDEN BROECK ET AL.

212 Wis. 22

249 N.W. 60

VAN DOMELON

v.TOWN OF VANDEN BROECK ET AL.

Supreme Court of Wisconsin.

June 6, 1933.

Appeal from a judgment of the Circuit Court for Dane County; A. G. Zimmerman, Circuit Judge.

Action by Henry Van Domelon against the Town of Vanden Broeck and the Globe Indemnity Company to vacate an order of the Industrial Commission denying plaintiff's application for compensation. From a judgment of the Circuit Court vacating the order and remanding the record to the Industrial Commission, defendants appeal.--[By Editorial Staff.]

Reversed and remanded with directions.

Action to vacate an order of the Industrial Commission denying the application of the plaintiff, Henry Van Domelon, for compensation. The circuit court entered judgment vacating the order, and remanding the record to the Industrial Commission for further proceedings. Defendants appealed from that judgment.James E. Finnegan, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for appellant Industrial Commission.

Quarles, Spence & Quarles, of Milwaukee (William J. Geenen, of Milwaukee, of counsel), for appellants Town of Vanden Broeck and Globe Indemnity Co.

Benton, Bosser & Tuttrup, of Appleton (Edgar E. Becker, of Appleton, of counsel), for respondent.

FRITZ, Justice.

[1][2] Plaintiff contends that the judgment appealed from is not appealable; that it is in effect merely an intermediate order which neither determined the action, nor prevented a judgment from which an appeal might be taken by defendants. That contention is erroneous. The judgment was entered in an action which is authorized by section 102.23, Stats., for the review of an order or award of the Industrial Commission. That statute provides that upon the hearing “the court may affirm or set aside such order or award”; and also that “the record in any case shall be transmitted to the commission within twenty days after the order or judgment of the court, unless appeal shall be taken from such order or judgment.”

Furthermore, section 102.25, Stats., provides: “Said commission, or any party aggrieved by a judgment entered upon the review of any order or award, may appeal therefrom within the time and in the manner provided for an appeal from the orders of the circuit court. * * *”

Obviously the provision last quoted expressly authorizes an appeal from a judgment entered upon the review of any order or award made by the Industrial Commission. Such a judgment, whether it affirms or sets aside an order or award of the commission, is the final determination which the court is to make in so far as the particular action, in which the judgment is entered, is concerned. It is not to be followed by any subsequent order or judgment in that action, and, consequently, it is not a mere intermediate or interlocutory order or judgment. If, after setting aside an order or award, a new order or award is subsequently made by the commission, in further proceedings upon a remanded record, in relation to the original application for compensation, then such new order or award is not reviewable in the action which was theretofore commenced and prosecuted to judgment in relation to a former order or award. Each proceeding to review an order or award of the commission is an action against the commission and such parties as may have an interest in sustaining such order or award. When the court in such an action either confirms or sets aside the commission's order or award, the court's adjudication constitutes the final determination in that action. If thereafter any person feels aggrieved by a subsequent order or award of the commission in relation to the same application for compensation, a new and separate action to review that order or award must be instituted by the person aggrieved.

The judgment appealed from set aside the Industrial Commission's order dismissing plaintiff's claim for compensation for injuries alleged to have been received by him while in the employ of the Town of Vanden Broeck. That order was based upon the commission's finding and conclusion “that no notice of injury as provided in Section 102.12 of the Statutes, in effect on January 9, 1929, was given by the applicant to the respondent within thirty days and inasmuch as no payment of compensation was made within two years from January 9, 1929, the claim of the applicant for compensation is barred and the Commission has no authority to award compensation to him, even if it were to find that the disability for which he is claiming compensation resulted because of his employment by the respondent as alleged by him.”

As the evidence did not admit of finding that any payment of compensation for the disability had been made by the town to the plaintiff, and as no written notice of injury had ever been given on his behalf, in compliance with section 102.12, Stats., plaintiff's right to compensation, upon the application involved in this action, was wholly barred by virtue of that statute, unless, within thirty days after the occurrence of the accident, which is claimed to have caused plaintiff's disability, “actual notice of the injury was given to the employer or to any officer. * * *” Plaintiff contends that the evidence entitled him to a finding that such actual notice was duly given.

It is undisputed that on January 9, 1929, plaintiff became ill because of heart trouble, while he was driving his team in helping others, who were likewise employed by the town, to remove snow from a town road. The evidence, in relation to the issue of whether the town was given...