154 Wis. 105 | Wis. | 1913
Lead Opinion
On January 23, 1913, the Industrial Commission made an award directing that the respondent pay to Miitie Smith the sum of $2,040 on account of the death of her husband, Pat Smith, while in the employment of respondent. March 24, 1913, in an action brought for that purpose, the circuit court for Dane county set aside this award on the ground that the Industrial Commission acted in excess of its powers in finding that the death of Pat Smith was not caused by wilful misconduct. ■ The finding of the Commission on this point was as follows:
“The death of Pat Smith was proximately caused by accident and was not caused by wilful misconduct; that at the time of such accident Pat Smith was in an intoxicated condition which proximately caused the accident.”
The statute (sec. 2394 — 4) provides that:
“Liability for the compensation hereinafter provided for, in lieu of any other liability'whatsoever, shall exist against an employer for any personal injury accidentally sustained by his employee, and for his death, if the injury shall proximately cause death, in those cases where the following con-, ditions of compensation concur: ... (3) Where the injury is proximately caused by accident, and is not so caused.by wilful misconduct.”
Sec. 2394 — 19. “The findings of fact made by the board acting within its powers shall, in the 'absence of fraud, be conclusive; . . . the same shall be set aside only upon the following grounds: (1) that the board acted without or in excess of its powers; (2) that the award was procured by fraud; (3) that the findings of fact by the board do not support the award.”
It is quite, possible for a person to be in an intoxicated condition, which condition proximately caused the accident which proximately caused the death, and yet not be guilty of wilful misconduct. The drinking of intoxicating liquor is wilful in the sense of intentional, but the mere fact of drinking is not misconduct. By sec. 1561, Stats., any person
If we were authorized to review the evidence we might come to a different conclusion. But the statute is mandatory that the award shall not be set aside on such ground. The
By the Court. — Judgment reversed, and the cause remanded to the circuit court with directions to affirm the award of the Industrial Commission. '
Dissenting Opinion
(dissenting). The plain, unvarnished tale in this ease is that Smith, an habitual toper, left his work, went to a saloon some distance from his place of employment, got a partial “jag” on, started back with a bottle of whisky, and got so drunk that thereafter while he was driving his team over a smooth road he fell off the wagon and broke his neck. There is no suggestion that the whisky was injected into him by force or by stealth or artifice. He bought it himself and drank it alone. It was an offense under the law of Wisconsin for him to get so drunk that he could not provide for his own safety or the safety of others, for which he might have been punished had he survived. Of course if the act of drinking was accidental or automatic or a mere mechanical exercise unconsciously performed, then intent would be lacking. But there is neither finding nor evidence that such was the fact. The deceased was a seasoned veteran, having a penchant for getting drunk, who from his long experience must have known and appreciated his capacity. The Commission did not find that the deceased got drunk hy accident. There was no evidence in the case to warrant any such finding. It did not award damages on any such theory.
It was not found that the deceased got drunk on an unusually small allowance of liquor because of sickness, hunger, or any other reason. Such a finding would totally lack support in the evidence. Where a party accustomed to the use of liquor drinks it until he gets drunk, the presumption is that he intended to do just what he did do. It was for the claimant to show by some facts or circumstances that for some reason or other the deceased drank less liquor than was ordinarily necessary to produce stupefaction in the instant case. No such evidence was produced. I think the circuit court was clearly right in holding that there could be no recovery, and that the Commission would have reached the same conclusion had it construed the law as the circuit court did and as this court does. The judgment of the court is based on a finding of fact which the Commission did not