Yawkey-Bissell Lumber Co. v. Indus. Comm'n

• Decision Date: 03 April 1934
• Citation: 253 N.W. 793,215 Wis. 99
• Parties: YAWKEY-BISSELL LUMBER CO. ET AL. v. INDUSTRIAL COMMISSION ET AL.
• Court: Wisconsin Supreme Court

215 Wis. 99

253 N.W. 793

YAWKEY-BISSELL LUMBER CO. ET AL.

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

April 3, 1934.

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

Action by the Yawkey-Bissell Lumber Company and another to set aside an award by the Industrial Commission for compensation to Esther E. Johns for the death of her father, William J. Edwards, while in the employ of the Yawkey-Bissell Lumber Company. From the judgment, plaintiffs appeal.--[By Editorial Staff.]

Judgment affirmed.

Action to set aside an award made by the Industrial Commission for the payment of compensation by the plaintiffs to Esther E. Johns on account of the death of her father, William J. Edwards. Judgment was entered affirming the award, and plaintiffs appealed.

L. A. Pradt, Jr., of Wausau, for appellants.

James E. Finnegan, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondents.

FRITZ, Justice.

[1] On this appeal and in the circuit court the plaintiffs seek to have the court set aside an award made by the Industrial Commission for compensation for the death of William J. Edwards. Edwards died at about 5 o'clock in the afternoon of Saturday, October 24, 1931, as the result of swallowing carbolic acid by mistake. Evidence, which is practically undisputed, establishes the following facts. At and for some time prior to the time of his death Edwards was in the employment of the plaintiff Yawkey-Bissell Lumber Co. at its logging camp, as a scaler and as the clerk in charge of a store maintained by his employer for selling to its employees clothing and tobacco, and also medicines used by them for self-medication. The clothing was kept on certain shelves and at one end thereof the medicines were kept. On the opposite end of the shelves, behind some overalls, a bottle of carbolic acid was kept for use in the treatment of wounded horses. The employer also provided sleeping accommodations in the store for Edwards, and a foreman, and another employee, but when logging operations were suspended on Saturday afternoons, Edwards' daughter usually called to take him to her home over the week-end. On the Saturday afternoon in question, at about dusk and while he and another employee were in the store, and he was awaiting the arrival of his daughter, he intended, apparently, to take some castor oil for relief from dysentery. However, instead, he took carbolic acid by mistake, and died within twenty minutes, notwithstanding immediate efforts to counteract the poison.

The Industrial Commission found that Edwards “at the time of the taking of the carbolic acid in question, did so by mistake and that in so doing, he was endeavoring to further his own personal health or comfort which he had the right to do in the course of his employment particularly because of the nature of his employment he was required to live on the premises of the employer and, therefore, at the time and place in question the applicant was performing service growing out of and incidental to his employment.”

And the commission concluded that, “in view of the fact that there was no claim made by the respondent that the carbolic acid in question was taken with suicidal intent and no evidence being offered tending to show that fact,” Edwards was injured “in the performance of an act which was not specifically prohibited by his employer and which was in the furtherance of his personal convenience and comfort,” and which was “so closely related to his employment that it can reasonably be said that it was incidental thereto.”

Appellants contend that as Edwards, at the time of the accident, was through with his day's work and waiting for his daughter to come and take him home, he was not then performing service under a contract of hire, and his presence on the premises after the...