211 Wis. 326 | Wis. | 1933
Plaintiffs commenced this action to set aside an award by the Industrial Commission of a death benefit because of the death of L. A. Forsyth, on November 28, 1930, as the result of typhoid fever contracted during the period of his employment by the Creamery Package Manufacturing Company as a sales engineer. He resided at Wau-kesha, Wisconsin, but his services in that employment took
On the one hand, there is evidence which established that from October 31 to November 14, 1930, no cases were reported of pfersons who were ill in Waukesha with typhoid; and that he spent two days of each week end there during that period, while visiting at home with his family. There is also competent evidence, which established that between October 31 and November 14, 1930, he was in Wisconsin, while at Milwaukee for three days, at Kenosha for two days, and Jefferson for one day, and while traveling between those cities and Waukesha and Chicago. In that connection it appears, from data compiled from printed copies of bulletins issued weekly by the United States Health Service, that no cases were reported of persons who were ill with typhoid in those cities between October 31 and November 14, 1930, but that there were reported fifteen of such cases in the first week, and five of such cases in the second week of that period, of persons ill somewhere else in the state of Wiscon
On the other hand, there is no evidence whatsoever that at any time between October 31 and November 14, 1930, Forsyth had come in contact with, or been in the presence of, any typhoid-infected person; or that he had been in any particular place where any such person had contracted typhoid; or that he had been exposed, in any particular place in which he had been, to any such cases, or to typhoid-fouled food, liquid, air, or other possible sources from which they arose. In view of the absence of any evidence in those respects as to the source of the infection, the case at bar differs materially from the typhoid-fever cases involved in Vennen v. New Dells L. Co. 161 Wis. 370, 154 N. W. 640, and Scott & Howe L. Co. v. Industrial Comm. 184 Wis. 276, 199 N. W. 159; the smallpox case involved in Vilter Mfg. Co. v. Industrial Comm. 192 Wis. 362, 212 N. W.
The commission in its memorandum decision recognized that the precise time and place at which Forsyth contracted typhoid will never be known. But the commission was of the opinion that it was certain that he did not contract it at home; that, on the basis of every reasonable and probable deduction from the facts of the case, he acquired the disease in his travels for his employer, and because of the hazard of the travel requirements of his employment; and that the facts are such as to “remove the case completely from the field of speculation.” In connection with making the award, the commission found that the applicant’s “contention that the • disease was contracted outside his employment, under the proofs of the case, may not be rated at more than a speculative possibility.”
Although, under the established rule applicable in cases involving the cause or origin of germ diseases, in which it is often difficult and even impossible to find the source from which the germ causing the disease has come, the Industrial Commission or the court can base its findings upon a preponderance of probabilities or of the inferences that may be drawn from established facts (Acme Body Works v. Industrial Comm. 204 Wis. 493, 497, 234 N. W. 756, 236 N. W. 378; Pfister & Vogel L. Co. v. Industrial Comm., supra; Vilter Mfg. Co. v. Industrial Comm., supra; Hafemann v. Seymer, 195 Wis. 625, 219 N. W. 375), that cannot be done when the proof does not pass beyond the stage of mere possibilities. Preponderance of .mere possibilities' is, of course, not the equivalent of a preponderance of probabilities. Mere possibilities leave the solution of an issue of
It is true, as the commission stated in its memorandum decision, that “the contention that the disease was contracted outside his employment, under the proofs of the case, may not be rated at more than a speculative possibility.” That statement is applicable principally to the time he spent at Waukesha, where he was of course “outside of his employment” to a greater extent than while he was anywhere else. Between October 31 and November 14, 1930, neither in Waukesha, while he was there, nor in any other city, excepting Chicago, was there any reported case of typhoid, while he was within a city. While he was within the city of Chicago, as well as while he was within the states of Illinois, Kentucky, and Indiana, he was but one person among several millions occupying extended areas. If it is but a speculative
An objection to the use of printed copies of weekly bulletins issued by the United States Health Service, under acts of Congress, was based upon the failure to have those copies certified as is necessary to render copies of official records admissible in evidence under sec. 327.18, Stats. The objection is technically sound, but the resulting error could probably have been readily avoided by obtaining leave to procure and substitute duly certified copies. Although sec. 102.23 (2), Stats., provides that “the court shall disregard any irregularity or error of the commission unless it be made to affirmatively appear that the plaintiff was damaged thereby,” and this court has held that “the Industrial Commission acting as an administrative board is not held to the same strict rule with respect to rulings on the admission of evidence as courts of law,” and that “the admission of incompetent evidence will not operate to reverse the award if there be any basis in the competent evidence to support it” (First Nat. Bank v. Industrial Comm. 161 Wis. 526, 154 N. W. 847), nevertheless, a reversal may be inevitable when there is no competent evidence introduced as to a fact which must be established in order to support an essential finding (International Harvester Co. v. Industrial Comm. 157 Wis. 167, 147 N. W. 53), unless the fact can be considered to be a
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment setting aside the award made by the Industrial Commission.