William Rahr Sons Co. v. Indus. Comm'n of Wis.

• Decision Date: 12 June 1917
• Citation: 163 N.W. 169,166 Wis. 28
• Parties: WILLIAM RAHR SONS CO. v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

166 Wis. 28

163 N.W. 169

WILLIAM RAHR SONS CO.

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

June 12, 1917.

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

Proceedings under the Workmen's Compensation Law by Margaret Meister, by her general guardian, the East Wisconsin Trust Company, for death of Otto Meister, the employé, opposed by the William Rahr Sons Company, the employer. Compensation was awarded, and, from that part of the judgment of the circuit court setting aside the award which remanded the record to the Industrial Commission to litigate a question of fact, the employer appeals. Affirmed.

Otto Meister was a fireman in plaintiff's employ. In the discharge of his duties he was required to take out clinkers from the combustion chamber, clean the boilers and fixtures, polish the same, clean the engine, and oil it. On March 19, 1915, Meister was attended by Dr. Shaw, who discovered two little cuts through the skin on the thumb, about one-eighth of an inch apart and half an inch long, around which there was some redness, and from the condition of which he concluded that Meister was suffering from streptococcus infection. Dr. Shaw saw Meister again on March 21st, at which time the hand was more swollen. On the 22d of March he had chills, his temperature had gone up a good deal, and he was considered to be in a dangerous condition. He was removed to a hospital, grew steadily worse, and died on March 28th of septicæmia. Upon petition the matter was brought before the Industrial Commission, and after hearing the commission found that plaintiff and Meister were subject to the provisions of the Workmen's Compensation Law; “that on or about the 9th day of March, 1917, while engaged in performing services for the respondent company growing out of and incidental to his employment, the said Otto Meister sustained an accident resulting in injury and in his death on the 28th day of March thereafter; that his injury and death were proximately caused by the accident and were not intentionally self-inflicted,” and compensation was awarded in the sum of $2,815.82. Plaintiff brought this action in the circuit court for Dane county to review the award made by the commission. The circuit court set aside the award for the reason that it appeared from the evidence that notice of claim for injury was not given until April 13, 1915, 35 days after the date of the injury as found by the commission. The commission made no finding as to whether or not there was any intention to mislead the employer or as to whether the employer was in fact misled thereby. Omitting the formal parts, the judgment entered was as follows:

“It is adjudged that the order and award * * * be and the same hereby is set aside, and that the record be and hereby is remanded to the Industrial Commission of Wisconsin for the purpose of litigating the question of fact as to whether there was any intent to mislead the plaintiff, or whether the plaintiff was in fact misled, by the failure to give notice of the injury within thirty days after the accident.”

Plaintiff thereupon appealed from that part of...