Vasey v. Indus. Comm'n of Wis.

• Decision Date: 21 May 1918
• Citation: 167 Wis. 479,167 N.W. 823
• Parties: VASEY ET AL. v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

167 Wis. 479

167 N.W. 823

VASEY ET AL.

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

May 21, 1918.

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

Petition by Evangeline Whitcomb to the Industrial Commission of Wisconsin against John Vasey and the Employers' Liability Assurance Corporation for an award for the death of her husband, Al Whitcomb. An award was made in favor of the petitioner, and John Vasey and the Assurance Corporation brought an action for review in the circuit court against the Industrial Commission and Evangeline Whitcomb. Judgment for defendants confirming the award, and plaintiffs appeal. Affirmed.

Whitcomb was employed as a swamper by John Vasey, and after the close of this employment entered into contract with Vasey by which he was to move his family to a camp near Ingram, have the use of the garden, and to work at peeling bark at $2.50 a cord. For the first two weeks after moving to the camp pursuant to this arrangement, Whitcomb worked around the camp gathering wood for his family; then he started on his work for Vasey. On April 14th, while engaged in peeling bark, Whitcomb is alleged to have slipped on a log, falling and injuring his right testicle. He had great difficulty in getting back to his home, two miles away, and for a week and a half was in bed part of the time, and after that all of the time until he died on May 25th. The camp was ten miles from Ingram and Mrs. Whitcomb was obliged to walk that distance to secure supplies and medical aid for Whitcomb. These conditions resulted in leaving Whitcomb without medical assistance until May 21st, 37 days after the accident. The physician who then attended him operated at the camp, and then moved him to a hospital, where he died. Previous to the physician's visit Mrs. Whitcomb had walked to Ingram and requested the storekeeper to send a doctor to the camp. There is no evidence that the notice required by section 2394--11 was given within 30 days after the injury. On May 8th, 24 days after the accident, Mrs. Whitcomb mailed a letter from her husband to John Vasey, telling him that Whitcomb was sick, and asking Vasey to come to the camp. A week later Whitcomb wrote, and Mrs. Whitcomb mailed another letter to Vasey in regard to Whitcomb's sickness. The question of prejudicial failure to give the statutory notice within 30 days after the accident and the question whether the death resulted from the injury or was a recurrence of an old trouble were sharply contested at the hearing. The commission found that the death was proximately caused by the accident of April 14th; “that no notice in writing of claim for injury was given the respondent by Al Whitcomb within 30 days after the occurrence of the accident, but the failure to give notice in writing of the claim was not with the intention of misleading the respondent, and that the respondent was not in fact misled by such failure; that the respondent had notice of the applicant's claim for death benefit under the provisions of sections 2394--3 to 2394--31, inclusive, of the Wisconsin statutes within 30 days after the death of the said Al Whitcomb.” The plaintiffs claim that the commission made its...