173 Wis. 128 | Wis. | 1921
The following opinion was filed October 19, 1920:
1. Counsel for the appellants admit that, if the testimony of the applicant, Cooley, is worthy of belief, there is evidence to support the findings of the Commission. Their contention is that his testimony is so improbable as to be unworthy of belief. It may be granted that the account of' the injury given by him seems rather improbable in some particulars. Yet the applicant, apparently a man of no particular intelligence or education, told substantially the same story as to the principal facts both to his medical attendants a few days after the alleged accident and at three hearings of the Commission at intervals of several months. Some of the most important statements were corroborated by the testimony of the hospital matron and others.
The testimony introduced by appellants tended to show that Cooley had been troubled by his left hand for years and that it looked as though it had been frozen. This was controverted, but if conceded to be true it does not necessarily refute the claim that the loss of the arm was nevertheless the result of the accident as alleged. As stated by the circuit judge, predisposition to disease does not prevent an award when the disability is proximately caused by the accident in question.
With the evidence in this condition the Commission was entirely justified in reaching the findings it did. It had the opportunity of observing the witnesses, their conduct and demeanor, and it is its function, as it should be, as triers of the facts, to judge of the credibility of witnesses and the weight of their testimony. We should be exceeding our
2. Appellants’ counsel further contend that the award is not the award of the Industrial Commission, but in fact is the award simply of an , examiner of the Commission. Counsel state in their brief that they have information that the award was not made by the Commission acting as a body; that the record was prepared by an examiner of the Commission and submitted tó the commissioners individually and approved by them separately. They state that under the"provisions of sec. 2394 — 19, Stats., there is no remedy whatever for the review of the action of the Commission except by action started in the Dane county circuit court; that the review thus provided for is merely a review of the record and is not-a trial de novo; and that there is no opportunity to present additional facts showing the absence of official action by the Commission. Because of this inability which they claim exists, it is contended that the Commission should show upon the face of the record compliance with all jurisdictional requirements; that it met and acted as a commission, and that a record which does not shoAv these facts is defective and should be set aside.
It is not necessary in this opinion to recite at length the provisions of the statute. It is provided that the findings of fact by the Commission acting within its powers, in the absence of fraud, shall be conclusive; that an action may be brought for review; that the pleadings, all the testimony and documents and papers taken and filed before the Commission, and its orders, findings, and award shall be filed
It is further provided that the court may set aside the order, award, or judgment “only upon the following grounds:
“ (1) That the commission acted without or in excess of its powers.
“(2) That the order or award was procured by fraud.
, “(3) That the findings of fact by the commission do not support the order or award.”
It would be indeed surprising if a party had no opportunity to show, if such be the fact, that a document in the record purporting to be the findings and award of the Commission was in fact not the act of the Commission. We are not convinced that this assumption is correct. If the charges of counsel amount to allegations of fraud there was an ample remedy by offering proof of the fácts alleged. International H. Co. v. Industrial Comm. 157 Wis. 167, 172, 147 N. W. 53. Appellants’ counsel made no attempt in the circuit court to attack the jurisdiction of the Commission or to show that it acted beyond its powers in the mode of making the award, or that the award was procured by fraud. The allegations of the complaint and the assertions in the brief, which are said to be based on “information” and “understanding,” are relied on to convince this court that the award is not in fact the award of the Commission.
Because our decision is based on another ground it is not necessary to decide whether the appellants could have properly offered proof that the Commission had not acquired jurisdiction or had lost it by handing down and recording findings and an award made up in the manner alleged. Nor is it necessary to decide whether a direct attack by another
In this state the rule has been applied to the acts of in-' spectors of election where the statute required that the bál-lots should be preserved and disposed of in a certain manner. State ex rel. Anderton v. Kempf, 69 Wis. 470, 34 N. W. 226; to the acts of a board of education, American F. & F. Co. v. Board of Education, 131 Wis. 220, 110 N. W. 403; to the acts of a board of public works, Wright v. Forrestal, 65 Wis. 341, 350, 27 N. W. 52; to’the acts of a joint school district board, Dolan v. Joint School Dist. 80 Wis. 155, 157, 49 N. W. 960.
The recitals in the findings of fact and award are that the Commission makes the findings of fact and that the' Commission awards. These documents are signed" by the commissioners in the name of the Commission. The Industrial-Commission has been created a body of broad powers and great responsibility and it is not necessary that it should recite the details of its procedure whereby it finds the facts and makes the awards, nor that it should recite more explicitly than that the Commission acts, that it. has complied with the law as to the manner of meeting for making its decisions. During the nine years of the existence of the Commission it has decided many hundreds of cases. Those decisions have been acquiesced in by the public, and we cannot agree that the averments and arguments made in this case overturn the presumption as to the regularity of its acts.
By the Court. — Judgment affirmed.
A motion for a rehearing was deniecl, with $15 costs, on January 11, 1921.
