187 Wis. 358 | Wis. | 1925
Lead Opinion
The following opinion was filed April 7, 1925:
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
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.
Rehearing
The following opinion was filed June 22, 1925:
(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.”
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.