Voelz v. Indus. Comm'n of Wis.

• Decision Date: 01 June 1915
• Citation: 152 N.W. 830,161 Wis. 240
• Parties: VOELZ ET AL. v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

161 Wis. 240

152 N.W. 830

VOELZ ET AL.

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

June 1, 1915.

Siebecker, J., dissenting.

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

Proceedings under the Workmen's Compensation Act (St. 1913, §§ 2394--1 to 2394--95) by Alfred R. Marienthal against Charles Voelz and others. An award made by the Industrial Commission was affirmed on the employers' appeal to the circuit court, and they again appeal. Reversed, and cause remanded, with directions to set aside award.

This is an appeal from a judgment of the circuit court of Dane county affirming an order of the Industrial Commission made under the Workmen's Compensation Act, awarding $1,124.40 to the claimant as compensation for the loss of an eye. The appellants claim that there was no sufficient proof that the loss of the eye was the result of an accident while in their employ.

The facts were as follows: The claimant is a plumber. He was working for the appellants, who are master plumbers, April 3, 1914, on which day he was sent with a helper to repair the plumbing in connection with a washbowl in the residence of one Fass in Milwaukee. He was repairing the hot-water basin cock, and in order to do so it was necessary to remove a lock nut from the under side of the bowl. To do this he lay down on his back on the floor and attempted to unscrew the nut, and while in this position “something” fell in his eye, which caused acute pain, and impelled him to rub his eye at once and frequently thereafter in the effort to get it out. He was unable to continue at work, but his helper finished the job under the claimant's direction. On the following day (Saturday) his eye was bloodshot and pained him somewhat, but he kept at work. He did not work on Sunday, but went back to work on Monday; the eye being bloodshot, the lids swelled, and pus beginning to discharge. At noon he quit work and consulted a physician (Dr. Schuster), who treated it for a week with no improvement, but rather the reverse. Then he went to Dr. Higgins, who at once made a microscopical examination of the pus discharged, found it to contain gonococci bacilli, and sent the claimant to a hospital. The difficulty was too far advanced, however, for cure, and the sight of the eye was lost. The claimant was examined superficially by Dr. Higgins to ascertain if he had gonorrhœal infection aside from the infection of the eye, with negative results. He was also examined at about this time by Dr. Connell under the eugenics law, and was given a certificate by him that he was free from such infection and might marry. He developed no infection anywhere except in the eye, and he testified that he had never had any gonorrhœal disease.

The Industrial Commission, in a memorandum attached to the award, made the following findings:

“It is clear from the evidence that the applicant had not suffered, prior to the accident, from a gonorrhœal disease, except as it may be inferred from the fact that thereafter gonococci was discovered in the pus from the eye. This infection of the eye might well have come from outside sources. The particles which he received in the eye might have been infected, or, with the eye inflamed, it might have become infected by rubbing it with an infected cloth or washing it in infected water, or in other ways. This seems a reasonable conclusion. The proximate cause of the injury, therefore, must be traced to the original accident whereby he received some injury to the eye by some substance finding lodgment in it.”

The trial judge, in affirming the commission's award, said:

“The evidence establishes an injury to the eye in the course of defendant's employment, the development of the germ within the usual time after such injury, and the consequent loss of sight. There is no proof of any other source of infection, and the defendant himself is shown to be free from such infection. Considering this state of the proof in view of the well-established rules, the court cannot disturb the findings and award of the commission.”

Henry J. Killilea and George Luebke, both of Milwaukee, for appellants.

Walter C. Owen, Atty. Gen., and Winfield W. Gilman, Asst. Atty. Gen., for respondents.

WINSLOW, C. J. (after stating the facts as above).

[1] The Industrial Commission can make no award unless it be supported by its findings of fact (section 2394--19,...