157 Wis. 167 | Wis. | 1914
Lead Opinion
The appellant makes the following contentions: (1) That unless the earning capacity of the claimant in the employment in which he was engaged at the time he was injured has been impaired, there can be no recovery for permanent disability; (2) that the undisputed evidence in the case affirmatively shows that there was no such impairment; and (3) that there is no support in the testimony for the finding of the Industrial Commission that there was.
The Commission fully sustains the contention of the plaintiff that the claimant is capable of earning as much as before
/This statute, while providing for a review by the courts of the award of the Industrial Commission, unlike the Railroad Commission Law does not permit a trial de novo in the circuit court. That court may set the. award aside on three grounds only: (1) That the Commission acted in excess of its powers; (2) that the award was procured by fraud; and (3) that the findings of fact do not support the award. Sec. 2394 — 19, Stats. 1911. Where an award is attacked as having been procured by fraud, it is probable that the statute contemplates that evidence may be taken on this issue in the circuit court. Whether this be correct or not, it is certain that this is the only ground on which the circuit court can consider any facts not found in the record as returned. Both parties must offer any testimony they wish to adduce before the Commission except on the issue of fraud. If they fail to do so, they are precluded from offering it at all.
Sec. 2394 — 16, Stats. 1911, carefully prescribes the powers and duties of the Commission in regard to taking testimony, in the following words:
“Either party shall have the right to be present at' any hearing, in person or by attornéy, or any other agent, and to present such testimony as may be pertinent to the controversy before the board; but the board may, with or without notice to either party, cause testimony to be taken, or an inspection of the premises where the injury occurred to be had, or the time books and pay roll of the employer to be examined by any member of the board or any examiner appointed by it, and may from time to time direct any employee claiming compensation to be examined by a regular physician; the testimony so taken and the results of any such inspection or examination, to be reported to the board for its consideration upon final hearing.”
'Under this statute either party has the right to present any testimony pertinent to the controversy. The Commission
The hearing before the Commission is the only one either party ordinarily ever gets on the merits. Once the award is made, except in cases of fraud, relief can be had only because of jurisdictional errors or errors of law. The statute carefully provided for one full and fair hearing on the merits. This necessarily included the right on the part of both parties to know what the testimony taken without notice tended to prove. Otherwise it could not be met, no matter how successfully the party against whom it operated might meet it if he knew what it was. To dispel any doubt about the matter,' the statute required all the evidence not taken at the original hearing to be laid before the Commission before the final hearing ended. This necessarily implies that the testimony taken ex parte is laid before the parties. Once filed with the Commission it becomes a public record which either party may examine and the law clearly contemplates that the parties shall have the right to'meet any new matter. Had the statute been less explicit the proceeding would be the same, under the rule in Ekern v. McGovern, 154 Wis. 157, 142 N. W. 595, and in State ex rel. Arnold v. Common Council of Milwaukee, post, p. 505, 147. N. W. 50. If it was' a fatal jurisdictional error, as is held in the Arnold Case, to refuse to hear argument on the part of the relator because it denied a common-law hearing, it would be a much more serious and prejudicial error to decide an important controversy on evidence which the defeated party did not and could not know of.
It will be further noticed that the section quoted specifies
As further bearing on the duty of the Commission to preserve and place before the parties all testimony on which it acted, sec. 2394 — 19 might be referred to. This section requires the Commission, when suit is brought to set aside an award made by it, to return to the circuit court all ‘documents and papers on file in the matter and all testimony which may have been taken therein. Obviously, this is essential if the court is required to examine the record to ascertain whether there is any evidence to sustain the findings made. The court cannot pass upon such a question unless it knows what evidence the Commission had before it.
This same section (2394 — 19) provides that the findings of fact made by the Commission within its powers shall in the absence of fraud be conclusive. This leads to the query: Is it within the power of the Commission as set forth in the law to make a finding of fact not supported by any evidence whatever ? This feature of the law was attacked in the original suit brought to test its constitutionality and was considered by the court, and it was there decided that if the Commission acted outside of its powers its decision was open for review to the extent that decisions of various other bodies are reviewable on certiorariJ Continuing, the court said:
“In such cases it is considered that clear violations of law in reaching the result reached by the board, such as acting without evidence when evidence is required, or making a decision contrary to all the evidence, constitute jurisdictional error and will justify reversal of the board’s action, as well as the failure to take the proper steps to acquire jurisdiction at the beginning of the proceeding. State ex rel. Augusta v. Losby, 115 Wis. 57, 90 N. W. 188.” Borgnis v. Falk Co. 147 Wis. 327, 358, 359, 360, 133 N. W. 209.
In a number of cases following the decision in Borgnis v. Falk Co., supra, the interpretation there given to the law has been followed. Northwestern I. Co. v. Industrial Comm. 154 Wis. 97, 103, 142 N. W. 271; Nekoosa-Edwards P. Co. v. Industrial Comm. 154 Wis. 105, 108, 141 N. W. 1013; Milwaukee v. Miller, 154 Wis. 652, 144 N. W. 188,
The rule in certiorari cases is that, if in any reasonable' view of the evidence it will support the conclusion arrived at, such conclusion will not be disturbed for want of support in the evidence. If, however, the finding has no support in the testimony, there was no jurisdiction to make it. State ex rel. Miller v. Thompson, 151 Wis. 184, 187, 188, 138 N. W. 628; State ex rel. M. A. Hanna D. Co. v. Willcuts, 143 Wis. 449, 453, 128 N. W. 97; State ex rel. Augusta v. Losby, 115 Wis. 57, 90 N. W. 188; State ex rel. Edward Hines L. Co. v. Fisher, 129 Wis. 57, 108 N. W. 206. From what has been said it is obvious that there must be some support in the evidence for findings of fact made by the Industrial Commission and that such evidence must be made a part of the record that is returned to the circuit court for review.
This brings us to a consideration of the evidence taken on the hearing which is before us and which consists of sworn testimony taken before the Commission and a statistical report compiled and published by the Commission. Sec. 2394 — 52, sub. 10, authorizes the Commission to collect, collate, and publish statistical and other information relating to the work under its jurisdiction and to make such public reports thereof as it deems necessary. This report was laid before the parties, and might be considered as evidence by the Commission.
There was no testimony given by any witness to the effect-that drill-press operators who had the sight of one eye impaired were discriminated against by employers. Whatever evidence is contained in the record' to support the finding of the Commission is found in pages 152 to 162 inclusive of a bulletin issued by the Commission under date of March 30, 1913 (vol. 2, No. 6).
This bulletin contains statements made by forty-nine different persons who at some time in their lives had lost the sight of one eye. The inquiries were directed to two subjects: (1) The ability to do wort after the accident, and (2) the ability to secure employment. Only thirteen of the persons interrogated were interviewed on this specific point. Less than one fourth of the persons interviewed stated that they thought they might have done better had it not been for their injury. The remaining three fourths said their injury had no effect on their earning capacity. No one stated that such an injury would affect the earning power of a drill-press operator. On this report, in part at least, the, Commission reached the conclusion, as before stated, that the claimant’s ability to do a full day’s work in the occupation in which he had been engaged was not impaired. Of the persons specifically asked as to whether they had been discriminated against in the matter of securing work because of the loss of an eye, but one gave an affirmative answer. He said he had been “refused employment, as his ambition was to become a railroad man, but the loss of the eye proved to be a handicap.” The others all stated that the injury did not prove to be a handicap in the matter of securing work. This evidence, instead of tending to support the finding of the Commission, if it .is of any value, strongly tends to support an opposite conclusion. It cannot be that because one person lost an eye when he was a boy and was thereby
Tbe Commission did not base its finding on evidence laid before tbe parties or on anything that can be considered evidence under tbe statutes referred to. In its memorandum decision filed with tbe award it states what it considered in tbe following language:
“It has caused an investigation to be made of a great many cases where one-eyqd men are actually at work in various employments. The result of this investigation is in print and is made tbe subject of public report: Tbe Commission has given consideration to various compensation acts in this and other countries, and has considered tbe legislative and administrative rules with reference to compensation in such cases. It has considered tbe conclusions and results of tbe United States Pension Board in making pension allowances in cases of similar injuries. Tbe Commission also has before it an award made by the California Industrial Accident Board under a provision in tbe California Compensation Act, identical with tbe provisions in this act.
“From all of the information that tbe Commission has at band, it concludes that under our act tbe loss of earning capacity because of tbe loss of tbe sight of one eye is equal to fifteen per cent, of tbe employee’s earning capacity at tbe time of tbe injury. '
“Therefore an award will go in favor of the applicant based on a loss of fifteen per cent, of bis earning capacity as determined by tbe evidence.”
This award was made about eight months after tbe final bearing took place. What compensation acts were considered and what provisions they contained, we do not know, and tbe parties did not know. Tbe same is true of tbe legislative and administrative rules referred to, as well as tbe conclusions of tbe United States Pension Board which are mentioned. We have no means of knowing whether tbe statutes referred to are similar to our own or otherwise. It is difficult to see
The circuit court was evidently unable to find any evidence in the record to support the finding of the Commission. The learned judge in his decision said:
“In determining whether such findings are supported by the evidence, the court must consider all matters of which-judicial notice will be taken. The evidence establishes the fact that the loss of one eye affects the ability of the applicant to judge distances. It is a matter of such common knowledge that judicial notice will be taken of it, that preference-will generally be given to men with two eyes, who can correctly judge distances, when they are to be employed upon such machines as that upon which the applicant is working.”
We entertain a high regard for the opinion of the circuit judge in this as well as in other matters. But we are obliged to disagree with him. The persons interviewed by the Industrial Commission seem to do likewise, and they ought to know what the fact is. If it be true that persons injured as
It may he that the Compensation Act will have a tendency in the direction indicated in the opinion of the trial court, although it is not apparent why this should he so. However, accidents of this class are too infrequent and the Compensation Act has heen in force too short a time to enable a court to say that it is a matter of common knowledge' that the discrimination exists. A fact must be pretty well known and pretty obvious besides before it can be taken judicial notice of.
It is urged in the brief of counsel for the claimant that working at a drill-press is not an employment, that the claimant’s ability to earn in some callings is impaired, that the law contemplates that he shall have compensation for the injury received, and that there was no intention to have this compensation “doled out with an apothecary’s scales.” The argument is plausible, but not convincing. Courts are no more above the law than are individuals. If judges are to perform the duties they have sworn to. perform, they must leave the duty of enacting statutes to the legislature. In case of doubt as to the meaning of a statute they must construe it, but never, intentionally at least, amend it. The aim
By the Court. — The judgment appealed from is reversed, and the cause is remanded to the circuit court with directions to set aside the award of the Industrial Commission and to either remand the record to said Commission for further hearing or enter final judgment in plaintiff’s favor, as the court may deem just.
Dissenting Opinion
(dissenting). I am unable to agree with the majority decision in this case. It proceeds, first, upon the erroneous assumption that there was no evidence of future disability in the case except that derived from the books, pamphlets, and documents consulted by the Commission, the use of which is disapproved; second, upon the erroneous assumption that these were necessarily consulted as original evidence; and third, upon the erroneous view that orders of the Commission can be reversed for improper admission of evidence. It was in evidence that the claimant lost an eye, and in the exercise of common knowledge and observation'the Commission was authorized to infer from this that his capacity to obtain employment was impaired. There is, in my opinion, no case made out for a reversal of the order of the Commission under sec. 2394 — 19, Stats., and the case of Ekern v. McGovern, 154 Wis. 157, 142 N. W. 595, has no relevancy to the questions here presented.
Summed up, the majority decision means that where there is a visible, permanent injury consisting of the loss of a member, the Commission cannot upon this evidence, together-
In Rosenkranz v. Lindell R. Co. 108 Mo. 9, 18 S. W. 890, 32 Am. St. Rep. 588, it is said to be well settled that prospective damages to adults on account of impairment of earning capacity in the future is a proper element of damages, and that proof should be made of previous physical condition and ability to labor or follow his usual avocation, as well as of his condition since the injury, to enable the jury to properly find the pecuniary damage. I think this is all the basis for such finding that is considered necessary. ' That was a case of injury to a child four years old, and the jury were
“It is properly held in such case, in the absence of the existence of direct evidence, that much must be left to the judgment, common experience and ‘enlightened conscience of the jurors, guided by the facts and circumstances in the case.’ ”
In Fisher v. Jansen, 128 Ill. 549, 21 N. E. 598, citing Chicago v. Major, 18 Ill. 349, it is said:
“In this, as in all other cases, it was proper for the jury to •exercise their own judgment upon the facts in proof, by connecting them with their own knowledge and experience, which they are supposed to possess in common with the generality of mankind.”
See, also, Chicago v. Scholten, 75 Ill. 468, 471, and other cases cited and commented on in Fisher v. Jansen, supra.
We also permit a jury, from evidence of the mere fact of wrongful act causing death, relationship of the beneficiary, age and financial circumstances of the deceased, to award •damages for prospective loss of support and for the probable loss of a legacy or devise of property not yet earned and which may never be earned by the decedent. Castello v. Landwehr, 28 Wis. 522.
Where the injury resulted in the loss of a limb or member and that result is patent, and the jury have the plaintiff’s age, occupation, and former earnings before them, they have, I think, quite uniformly been allowed to estimate from these •data the probable future impairment of earning power. Impairment of capacity to obtain employment is impairment of •earning capacity. I recall cases in this state where an infant of tender years, on proof merely of his age and injuries, was allowed to recover for impairment of earning power which would begin far in the future after the infant had arrived at the age of twenty-one. In cases in which the injured party may or may not be restored to health, it is necessary to
I do not think the Commission committed any reversible error in examining the books and papers mentioned. These-were not in the nature of evidence, but merely argumentative and advisory upon the other facts above referred to and properly before the Commission. I think the employment in which the servant was working at the time of the accident is referred to in the statute more for the purpose of fixing the measure of compensation than for any other purpose. Even if they were evidence and incompetent, this would not be ground for reversal. I am unable to understand how the order in question of the Commission can be reversed under a statute which forbids the court to set aside the order of the Commission unless the latter acted outside of or in excess of its power, or that the order was procured by fraud, or that the findings of fact of the Commission do not support the-order. The second and third grounds are entirely wanting, so that this order must have been reversed upon the ground that the Commission acted outside or in excess of its'power in awarding compensation for impaired earning capacity, merely because, having the evidence of the nature of the injury, the-occupation, age, and earnings of the servant, the Commission read up concerning what other administrative quasi-judicial or judicial tribunals did with reference to amount under similar circumstances.