Vilter Mfg. Co. v. Jahncke

• Decision Date: 08 March 1927
• Citation: 192 Wis. 362,212 N.W. 641
• Parties: VILTER MFG. CO. ET AL. v. JAHNCKE ET AL.
• Court: Wisconsin Supreme Court

192 Wis. 362

212 N.W. 641

VILTER MFG. CO. ET AL.

v.JAHNCKE ET AL.

Supreme Court of Wisconsin.

March 8, 1927.

Appeal from Circuit Court, Dane County; August C. Hoppmann, Judge.

Action by the Vilter Manufacturing Company and another against Ethel Jahncke and the Industrial Commission to set aside an award of compensation made by the Commission to Ethel Jahncke. Judgment for defendants, and plaintiffs appeal. Affirmed.--[By Editorial Staff.]

Action to set aside an award of the Industrial Commission on the grounds: (a) That there is no evidence to sustain the finding that Roy Jahncke, the deceased, contracted smallpox, from which disease he died, while performing service growing out of and incidental to his employment; and (b) if he did contract the disease while in the employ of the plaintiff manufacturing company, he was not, at the time it was contracted, within the scope of his employment. The Industrial Commission found that he did contract smallpox while employed by the plaintiff manufacturing company, and while within the scope of his employment, and entered an award in favor of the claimant, his widow. From a judgment affirming the award, the plaintiffs appealed.Quarles, Spence & Quarles, of Milwaukee (Arthur B. Doe, of Milwaukee, of counsel), for appellants.

John W. Reynolds, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondent Industrial Commission.

Andrew W. Brunhart, of Milwaukee, for respondent Jahncke.

VINJE, C. J.

Roy Jahncke died on April 6, 1925, from smallpox. For nine years he had been in the employ of the Vilter Manufacturing Company as an erecting engineer. He worked part of the time at the plant of the company on Clinton street in Milwaukee, and part of the time away from the plant. For two weeks prior to March 7, 1925, he was at Hillsboro, Wis., where two families were quarantined for smallpox. He went there by train. On March 11th he went to the South View Hospital or Isolation Hospital, where there were smallpox patients, a serve a refrigerator plant. He and his helper waited in the boiler room for about half an hour for the engineer. Refuse from the hospital was daily burned in the boiler room. From there he went to the refrigerator room, about 15 feet from the laundry. The entrance to the refrigerator room was opposite the kitchen, and a ventilating fan expelled the air from the kitchen in the direction of the refrigerator room, whose windows were open part of the time. While working in the refrigerator room, a janitor came in and made some ice cream a few feet from where deceased worked. He was given some ice cream from a spoon by the janitor. The helper also had some, and all ate from the same spoon, but its bowl was washed in hot water between the eatings. The janitor had worked till about 9:30 cleaning up the wards, and had then taken care of the laundry. Deceased worked in the refrigerator room till about 4 o'clock in the afternoon. He did not again return to work in the hospital. Later he was employed a short time at Godfrey & Sons, commission merchants, on Broadway, where a clerk had recovered from smallpox in February. On March 19th he was sent to Benton Harbor, Mich., where he was taken ill, and he returned on the 24th, and had medical attention. On the 29th he was taken to the Isolation Hospital, where he died. There were about 26 smallpox cases in Milwaukee March 11th, and the number increased later. There were no cases in the family of the deceased or immediate vicinity. The medical testimony of at least two doctors on behalf of the claimant was to the effect that, while it could not be stated as a certainty that he contracted smallpox at the Isolation Hospital, it was very probable that he did--much more probable than that it was contracted elsewhere. The incubation period was shown to be from 8 to 16 days, and it is in evidence that on March 20th deceased was ill from smallpox. The medical testimony of the plaintiffs does not contradict that of the claimant. It only emphasizes the fact that it cannot be told to a certainty that he contracted the disease at the hospital, and it is urged that he may have contracted it on street cars, trains, or elsewhere.

[1] Since we are not called upon to weigh the probabilities for or against the finding of the commission, but only to ascertain whether or not there is competent testimony to sustain it, no effort has been made to set out all the details of the evidence for or against the commission's finding. The ultimate question we have to answer is, Can a finding rest upon a preponderance of probabilities? The...