212 Wis. 227 | Wis. | 1933
The following opinion was filed April 11, 1933:
Plaintiff seeks judgment setting aside a death benefit awarded by the Industrial Commission for the death of Frank Forman, during the hours and in the place of his employment by the plaintiff. The- evidence established that on September 8, 1930, Forman, who had taken a shower bath, as was permissible and usual during the last hour in his daily employment, had a heart attack while walking up
The circuit court affirmed the award. The only error assigned on this appeal is that the court .erred in refusing to set aside the commission’s findings and award “on the ground that the fall itself, and the resulting injury and ensuing death, did not ‘grow out of’ the employment.” Inasmuch as the commission found, upon evidence that amply supports
So far as “any personal injury accidentally sustained” is concerned, there is no provision in the statutes of Wisconsin because of which it is necessary that such an injury “grow out of” the employment in order to render the employer liable for compensation. In that respect there is a material difference between the statutes of this state and those involved in the cases upon which plaintiff relies, in contending that liability for compensation is conditioned upon the injury growing out of the employment. The cases in other jurisdictions which are cited in support of plaintiff’s contention were decided under statutes which, by their express provisions, allowed compensation only for injury “growing” or “arising” out of the employment. That is not required by any provision in the statutes of Wisconsin. There are no words in our statutes which require, so far as “any personal injury accidentally sustained” is concerned, that the injury grow out of the employment in order to render the employer liable for compensation. In that respect the only provision in our statute is that “the employee is performing service growing out of and incidental to his employmentand as to the significance and scope of that provision, we have the legislative declaration, by an amendment in 1913 (ch. 599, Laws of 1913, p. 712), that:
“Every employee going to and from his employment in the ordinary and usual way, while on the premises of his employer, shall be deemed to be performing service growing out of and incidental to his employment.” •
“Liability for . . . compensation . . . shall exist against an employer for any personal injury accidentally sustained by his employee, and for his death, in those cases where the following conditions of compensation concur:
“(!)
“(2) Where, at the time of the accident, the employee is performing service growing out of and incidental to his employment.
“Every employee going to and from his employment in the ordinary and usual way, while on the premises of his employer, shall be deemed to be performing service growing out of and incidental to his employment. . . .
“(3) Where the injury is proximately caused by accident, and is not intentionally self-inflicted.”
The only provision in that statute creating an exception from liability for “any personal injury accidentally sustained” by an employee, when he and his employer are otherwise within the provisions of the compensation act, and the injury is proximately caused by accident, is when the injury is intentionally self-inflicted. That exception is not applicable in the case at bar. On the other hand there is no provision in the statute which exempts .the employer from liability because some physical affliction or disorder of the employee preceded the accident, which proximately caused the personal injury sustained by the employee.
It is true that although there were then no words in the statutes expressly to that effect, it was said in Hoenig v. Industrial Comm. 159 Wis. 646, 648, 150 N. W. 996:
“It seems quite clear that the injuries for which compensation is to be paid, under the act, are such as are incidental to and grow out of the employment.”
Although two prior decisions of this court were cited in support of that statement, nothing expressly to that effect
In this connection it should probably be noted that for a time, until the repeal thereof' by sec. 39, ch. 403, Laws of 1931, an amendment by ch. 457, sec. 2, and ch. 668, Laws of 1919, sec. 102.35, Stats., provided that “the provisions of sections 102.01 to 102.34 . . . are extended so as to include, in addition to accidental injuries, all other injuries, including occupational diseases, growing out of and incidental to the employment.” In so far as that amendment extended the provisions of the compensation act to “other injuries, including occupational diseases,” than “personal injuries accidentally sustained,” as to which compensation had theretofore been provided, the adjective clause “growing out of and incidental to the employment,” which is in that
Likewise, there is no exception under the statutes because the effect of the fall was no greater as a result of the industry itself than ordinarily under such circumstances, or because the conditions of exposure are no different by reason of the industry than they are ordinarily under similar circumstances. When any personal injury accidentally sustained by an employee is not self-inflicted, it makes no difference who was at fault or to blame. “The injury is compensable when it results from a hazard incidental to the industry,”
By the Court. — Judgment affirmed.
A motion for a rehearing was denied, with $25 costs, on June 29, 1933.