Yellow Cab Co. v. Indus. Comm'n

• Decision Date: 07 February 1933
• Parties: YELLOW CAB CO. ET AL. v. INDUSTRIAL COMMISSION ET AL.
• Court: Wisconsin Supreme Court

210 Wis. 460

246 N.W. 689

YELLOW CAB CO. ET AL.

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

Feb. 7, 1933.

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

Action by the Yellow Cab Company, employer, and others, against the Industrial Commission and John H. Hatfield, claimant, to vacate a compensation award to the claimant. From a judgment affirming the award, plaintiffs appeal.--[By Editorial Staff.]

Affirmed.

Action to vacate an award by the Industrial Commission of compensation to John H. Hatfield. The circuit court ordered judgment affirming the award, and plaintiffs appealed from that judgment.Richmond, Jackman, Wilkie & Toebaas, of Madison, for appellants.

John W. Reynolds, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., and Bagley, Spohn, Ross & Stevens, of Madison, for respondents.

FRITZ, J.

The only question is whether Hatfield, who was regularly employed by the plaintiff Yellow Cab Company from 6 p. m. to 5:30 a. m. to attend to its office telephone switchboard, and also to load and start taxicabs at the railroad station upon the arrival of certain trains, is entitled to compensation while ill with pneumonia, which he claims he contracted as the result of exposure on February 6, 1931, while engaged in outdoor work at a time when the temperature ranged from 24° to 29° Fahrenheit above zero, and there was a moderate snowfall. Hatfield felt well when he reported for work at 5:40 p. m. At 8:30 p. m. he was directed to attend to the unloading, loading, and starting of cabs at the Memorial Union Building of the State University at a social function, which continued from 8:45 p. m. to 2:30 a. m. He wore winter apparel, but had forgotten his overshoes. En route to the Memorial Union Building, he spent twelve to fifteen minutes in changing a tire, during which time he had to kneel in the snow; and at the building he worked outdoors on a concrete platform. He was very busy opening doors and moving around. At the end of half an hour he began to feel chilly all over his body, and his legs and feet. Those conditions became so much worse that at 10:30 he went home, took off his stockings and shoes, sat near the coal stove, and took some tea, feeling ill and cold; but after twenty minutes he replaced his stockings and shoes, put on overshoes, and returned to his employer's office for work. At 11:15 p. m. he was again sent to work on the outside platform at the Memorial Union Building, and continued there until 2:30 a. m. with the exception of half an hour, which he was directed to spend in the building soliciting trade. While doing that he kept on his overcoat but could not get warm. At 2:30 a. m. he returned to his employer's office, and at 5:30 a. m. he went home and to bed. During all that time he could not warm up, and he felt his head and chest filling up and becoming sore. Those conditions grew worse, and when a physician was called on the evening of February 9, 1931, he found an abnormal temperature and symptoms of pneumonia. On the following day he sent Hatfield to the hospital because lobar pneumonia was developing. That disease ran its usual course, excepting that on February 19, 1931, Hatfield suffered a thrombosis from the pneumonia in the leg, which interfered with circulation to the extent that a toe became gangrenous and had to be disarticulated at the proximal joint. Expert medical testimony received at the hearing before the commission fully warranted the statement in its memorandum decision that although pneumonia germs are prevalent in the throats and noses of many normal persons, pneumonia does not result unless the germs invade the lungs and germinate there, which occurs from a lowering of the resistance by some cause; that such “lowered resistance may be due, among other things, to exposure, alcoholism, and reduced vitality following an operation”; “that the exposure on the evening in question, following a probable heating of the body while changing the tire, was the most logical cause of the lowering of the resistance causing the development of the pneumonia”; and also the commission's conclusion that “on the whole record, and considering the time element involved, the pneumonia was caused by the exposure lowering the resistance so that the germs germinated and invaded the lungs.” In its formal findings of fact the commission held that “while performing service growing out of and incidental to his employment, applicant contracted pneumonia, resulting in his disability”; and that the employer was liable for compensation under the Workmen's Compensation Act.

A review of the record discloses that in addition to the facts stated in the commission's decision, as briefly indicated above, there was undisputed medical testimony that the incubation period of pneumonia germs is two or three days after the exposure. The attending physician was of the opinion that in this case the exposure occurred by chilling during the night of February 6, and he found no other cause in the case for the lowering of the resistance and the pneumonia which resulted. Even the physician called by the employer admitted the possibility of that exposure as such cause, but he thought that the symptoms indicated that the disease began before that exposure. The evidence sufficiently sustains the findings and conclusions of the commission; and the entire record warrants the conclusion that Hatfield sustained an “accidental injury * * * growing out of and incidental to the employment.” It was a “personal injury accidentally sustained” within the meaning and contemplation of those words as used...