Pruno v. Industrial Commission

| Wis. | Jun 22, 1925

Lead Opinion

The following opinion was filed April 7, 1925:

Rosenberry, J.

The order of the Industrial Commission can be set aside only upon one of the following grounds: (a) that the Commission acted without or in excess of its powers; (b) that the order or award was procured by fraud; (c) that the findings of fact by the Commission do not support the order or award. It has been repeatedly held that when there is competent credible evidence sufficient to sustain the findings of the Commission it cannot be said to act in excess of or beyond its powers. Here, however, it is considered that the undisputed testimony shows that Pruno was employed to do but one thing — to explode a blast of dynamite in the bottom of the well. It was all that he was requested to do and all that he attempted to do. He had nothing to do with the removal of the rock from the bottom of the well nor was he concerned, except in a neighborly way, with the result of the blast which he had placed in the well. It was no part of his duty to remove the rock. The entire argument in this case in support of the award rests upon the proposition that Pruno undertook to blast “out” the rock. This is construed to mean that he undertook to remove the rock as an obstruction to the further progress of Olson’s work. This is a wholly unwarranted inference and one which to any one with the slightest degree of familiarity with the way in which this work is carried on, under the circumstances as shown by the evidence in this case, is beyond the field of reasonable inference. He was repeating the operation which had been theretofore performed by two other men, to wit, the placing of a blast in the bottom of the well for the purpose of breaking up the rock. If it be conceded that Westine was the employee of Pruno in placing the blast — a thing which in itself is very doubtful, — it conclusively appears that when that operation was completed he was thereafter performing no service for Pruno, and therefore at the time of the unfortunate accident the relation of employer and employee did not exist between Pruno and Westine if it in fact had ever existed. Whatever was done in the way of removing material from the bottom of the well in no way benefited Pruno. If it be assumed that they all, including Pruno, wished to ascertain the effect of the blast, that did not create the relation of employer and employee.. Assisting Westine to go into the well after dinner was a neighborly act, performed to satisfy a very natural curiosity on the part of all concerned, Westine included. It in no way concerned Pruno as an employer.

This case has no parallel in the decisions of this court as to its facts, but in principle is the same as Lange Canning Co. v. Industrial Comm. 183 Wis. 583, 197 N. W. 722. In view of the conclusion at which we have arrived upon this branch of the case, it is not necessary for us to consider other questions raised in the case.

By the Court. — Judgment appealed from is reversed, and cause remanded to the circuit court with directions to enter judgment setting aside the award of the Industrial Commission; no costs to be taxed by either party, appellant to pay the clerk’s fees.

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Rehearing

The following opinion was filed June 22, 1925:

Rosenberry, J.

(on rehearing). The motion for rehearing in this case was made at the instance of the Industrial Commission, accompanied by the request that the court make such modification of the mandate or decision as may be necessary to permit the Commission to take further testimony and make another award if new evidence warrants it. The brief of counsel contains the following statement:

“We wish it to be clear that neither the Industrial Commission nor the attorney general questions the correctness of this court’s decision, that the original award should be set aside. Conceding that determination to be sound on the record before the court, it is felt that justice will be best served by a further excursion into the facts of the situation.”

It appears from the record that there have already been two hearings in this case before the Industrial Commission and there is every indication that the evidence has been produced in the minutest detail. Nor is there any statement in the briefs filed upon this motion to indicate that there are in existence facts other than those presented in the record. The situation thus presented is anomalous to say the least and one to which we deem it our duty to call attention. We are.in effect asked to grant a new trial without any showing or even a suggestion that there exists any proper ground therefor, in order that the Commission may make a further “'excursion” into the facts of the situation. Under the law it is the duty of the Commission to have made “this excursion,” and, as already stated, the record indicates that it has been done thoroughly and exhaustively. The Industrial Commission is a quasi-judicial body and is supposed to stand as an impartial tribunal in the administration of the law. While no doubt it is the intent and purpose of the law that the Industrial Commission shall see that the claimant is protected in her rights, it does not require partisan activity on the part of the Commission. Every person, claimant, employer, and insurance carrier, stands equal before the Commission, and it is the duty of the Commission to make investigations, find the facts according to the weight of the evidence, and apply the law fairly and justly without regard to the consequences to particular parties.

In any event this court cannot, when the judgment of the lower court is affirmed, grant a new trial as a matter of favor either to the Commission or parties to controversies before it. •

By the Court. — Motion denied, without costs.