*1 528
The estate also on Norman Kernan relies v. 78, being 127, contrary 276 to Ras Wis. N. W. mussen. The in Rasmussen was not considered issue resulting question Norman, a which involved whether person supplied trust was created favor who being and were used who knew funds funds buy person of a third who was real estate the name Knowledge object bounty. of the trans natural his supplier part action on the the husband acquiescence result plus the basis for the the funds Norman, case, Kohn un in the Mr. while instant bought the sav or established wife bonds aware his ings account in her name. sole Judgments
By the affirmed. Court. — Department Inc., Appellant, In T.R. Madden, v. another, dustry, Relations Labor & Human Respondents. July May 7, Argued 1969. Decided
No. 263. reported 73.) (Also 2d in 169 N. W. *7 appellant by Campbell, there were briefs For argument by Ryan, Mark L. Brennan, Steil & and oral Korb, Janesville. all of & respondent Department Industry, Labor
For argued by Sam- Gordon Human Relations the cause was attorney general, on the uelsen, with whom assistant general; attorney Warren, con- Robert W. brief respondent Kapell Madison, Philip for by L. curred in argument. Kapell presented Manthe; oral Mr. also Dennis to review power of court J. The. this Heffernan, governed by department findings made of fact Stats., (1), scope. 102.23 limited Sec. and is statute provides: findings fact (1) The “102.23 Judicial review. shall, acting powers within its the commission
made in the the court conclusive .... fraud, be absence award; and or may order or aside such confirm set rendered judgment may have been any theretofore which only upon the thereоn; following aside the same shall set but grounds: in excess or “(a) acted without the commission That powers. of its “ procured fraud. (b) order or award was That the do by the commission “(c) of fact That the support the order or award.” the con- purpose limitations was stated of these McCarthy curring opinion of Mr. Justice Crownhart 205, 215 Sawyer-Goodman Co. Wis. v. 824: N. W. passing com- legislature, the workmen’s “. . . the *8 speedy justice for the act, of pensation in the interest protracted liti- appeals sought
workingmen, limit gation.” legislation administrative the explicit in the It is department are legislature by in the powers the vested court, reviewing by A courts. exercised the not to be no it, has complete though record before it has the even the Under of authority fact. make its own 102.23, determine, in may only forth sec. set it statute findings of setting “That an award Stats., aside support order or not by do commission fact
537 In court, award.” applying instant case the circuit statutory applicable review, mandate on stated: pre- “This determination resolved the factual issues agency employee. to the in favor sented of If these findings logical upon of fact are based credible evidence and binding therefrom, they are then inferences on conclusive this court. provokes inquiry “This then on Is the first review: any there reached ?” evidence to the result credible sustain reaching judgе upon relied In conclusion the trial this v. of the rule forth in Unruh the succinct statement set 394, (1959), 398, 8 2d 99 N. W. Industrial Comm. Wis. 2d 182: question is credible commission “The not whether there is finding did record to in the make, sustain any evidence to credible sus- but whether there is finding did make.”
tain
the commission
long
by
line
this court
the use
A
of cases
recently
“any
This test was
credible evidence” test.
Department
Detter v. ILHR
this court
used
relied
284, 287,
We therein
2d
tains *9 compensation proceeding, is test whether there is which, unexplained, support credible evidence would finding.” (Emphasis supplied.) appellant position The herein takes the that the “un- explained” emphasizes rule that a of fact of the department will not be affirmed aas matter of course just because is there some credible evidence in rec- support Appellant ord any it. other contends that position judicial question reduce the review a nullity. оf fact to a appellant In its brief concedes that findings is some credible examiner, right of the but it contends this court has obligation sufficiency to look into the of the evidence. sufficiency evidence, of the it claims, is determined underpinning depart- whether or not the evidence explained away by ment’s is other credible evi- record, probative dence in the that it so loses its value. although that, proof It also contends burden case, than in less a civil the basic facts must be estab- certainty by lished preponderance within a reasonable appellant Basically, position of the evidence. takes the upon by department that the facts relied that show Madden’s conduct under was reasonable circum- stances. It recounts the in the record Madden’s that facts supervisor, accident, a week before the ordered a new set wheels, get easily drive that it would take week to replacements, operator machine at one least of the operating one, satisfactorily, stated it was and that no prior unsafe, to the accident, claimed that the saw was although acknowledged the maintenance for Madden man operation complaints that he had received about the employer points the machine. The there was out testimony slippage might of the machine have сaused, admittedly wheels, been worn but proper result failure to run the machine at speed, ramp properly placed or that it on the was not two-by-fours tipped ran off so that it over. *10 appellant apparently of the that these is the contention It admittedly appear record, evidence, which items of support equally explain away evidence which credible findings. department’s the “unexplained” rule the
Thus, if were to follow we interpreta- appellant in and concur the its advocated meaning rule, would, under its of the we tion of the obliged department the trial the and theory, to reverse be department, hand the while On the other court. “unexplained” interpretation agreeing of the with the taking position appellant, the the and rule advanced merely upon by appellant the relied that the evidence disregarded in the face contradictory and should be urges findings, court supports that this the evidence that unexplained” phrase from the standard “if delete the suggests that frequently and this court used of review rely solely upon the court standard henceforth the “any to evidence” credible whether there is phrase, argues department. It that of the encourages unexplained,” unwarranted if which “evidence purposes litigation, contrary to the and meritless designed to Compensation Act, whiсh was Workmen’s injured acci- in industrial workmen the claims of settle litigation. protracted appeals and needless without dents unexplained” argues “if department The a confusion constitutes deleted because it phrase should be meaning language stan perversion of the Indus Dry Co. v. Hills Goods forth of review set dard 76, 83, 85, 258 W.N. (1935), 217 Wis. trial Comm. speaking for Justice Mr. Chief Therein Rosenberry, Evidence, Wigmore, sec. upon 5 court, reliance applied indus to test should concluded that cases is: commission trial “ unanswered which in the evidence there facts ‘Are ordinary fairness reason and justify person of claimant affirming of the facts which existence
in is bound ” supplied.) (Emphasis to establish?’ department “unexplained”
The also contends that imprecise it rule is so tends to mislead courts into weighing the evidence in the record rather than examining upon department re- which the points employer, lied. as wherein the It this case one relying upon “unexplained” rule, seeks have weigh court the evidence. unexplained” phrase apparently “if first used phrase, unanswered,” for “if Motor substitute
Transport Co. v. Public Service Comm. 263 Wis. *11 governed 31, proceeding 548, 56 2d in a N. W. that was Act, 227, ch. Uniform Administrative Procedure “any which the test is credible evidence” but “sub The evidence in view of the entire record.” stantial Transport case, upon Motor Mat Case relied a York New (1940), Y. Restaurant, ter Stork Boland 282 N. Inc. v. 256, 274, 26 2d York court stаted N. E. New unexplained might therein, conclu “Evidence which be may probative supplemented lose all force when sive explained testimony.” by other
Although Transport itself Motor did not concern with commission, by a review of the of the industrial way least, opinion, of dicta Mr. at the author rule Justice indicated he believed Currie, stating cases, be followed in therein: should such “Therefore, Res- the . . . from the Stork . sentence . . determining applicable taurant Case would seem necessary what credible evidence to sustain 47.) (p. the Industrial Commission.” fact
Subsequent Transport, phrase its to Motor found way cases, and into a number of used them test if un- was whether there was “credible evidence which finding. explained” A. O. Smith Corp. (1953), 510, 59 v. Industrial Comm. 264 Wis. 471; Fruit Boat Market v. Industrial Comm. N. W. 2d
541 Realty Browser (1953), 304, 689; 264 58 2d Wis. N. W. v. Co. Industrial Comm. (1954), 73, 266 62 Wis. N. W. Mfg. Corp. Marathon Electric 577; v. Industrial 2d Comm. 573, (1955), 394, 269 69 Wis. N. W. 2d 70 N. W. Cooper’s, Inc. 576; v. Industrial Comm. 2d (1962), 15 Shawley v. Industrial 589, 425; Wis. 2d 113 N. W. 2d Comm. (1962), 539, 535, 872; 16 114 Wis. 2d 2dW.N. Carr v. Industrial Comm. (1964), 536, 25 2d 131 Wis. Seymour Industrial 328; v. Comm. (1964), N. W. 2d 25 486, 482, 2dWis. 131 N. 2d 323. W.
Simultaneously, making any without distinction be- cases, tween the opinions this court issued has series upon “any which relied credible evidence” rule. Buettner v. Industrial Comm. (1953), 517, 516, 264 Wis. Hemans v. Industrial Comm. 442; 59 (1954), N. W. 2d WisconsinPower & 100, 104, 406; 266 62 Wis. N. W. 2d Light Co. Industrial v. Comm. 513, (1955), 268 Wis. 2d Melli Comm. 44; v. Industrial 514, (1956), 68 N. W. Borden v. Indus 78, 225; Co. 76, 274 Wis. 79 N. W. 2d trial Comm. 261; (1958), 619, 621, Wis. 2d 87 N. W. 2d Hanz v. Industrial Comm. (1959), 316, 7 Wis. 2d Van Valin 533; Comm. v. Industrial 96 N. W. 2d Duvick v. Indus 362, 364, 920; 2d 112 N. 2d Wis. W. *12 trial Comm. (1963), 163, 22 2d 155, 125 N. 2d Wis. W. County 356; Grant Bureau v. Service Industrial Comm. 293; Horvath (1964), 579, 582, 2d 131 25 Wis. N. 2d W. v. Industrial Comm. 256, (1965), 253, 26 2d 131 Wis. Refrigeration Heating Ace & Co. Indus v. 876; 2d N. W. trial Comm. 311, (1966), 315, 32 N. 2d Wis. 2d 145 W. Kraynick v. Industrial Comm. 777; 34 2d (1967), Wis. Lewellyn Depart ILHR 107, 111, 668; v. N. 2d 148 W. ment 678; (1968), 51, 2d 155 2d 43, 38 Wis. N. W. Department ILHR Detter 284, v. (1968), 40 2d Wis. 287, 161 2d N. W. the Motor analysis An of which followed cases
Transport “unexplained” rule decision shows that 542 applications in at least two senses. These
was used application One the rule are somewhat inconsistent. simply conclude “un- the rule would be corrupted test, “unexplained” which to the answered” was determining rule, merely that, in whether the evi- means finding supports department, a dence should only supporting of the evidence consideration finding it. A mean- and not evidence in answer to second ing that, standing alone, appears evidence to be if there is purpose supporting for the it will be considered finding appears or if there in the record other facts testimony upon irrelevant relied that make the evidence nonрrobative Under inter- or of the fact this found. though at its pretation, will be taken credible explained away. only if it is not face value interpretation of the rule is found The first 535, (1962), 2d Shawley Industrial 16 Comm. Wis. v. discussed 872, 2d Mr. Justice 114 W. wherein N. Currie adequate testi- question medical of whether there was by mony the commission. made applicant’s disability occa- regard In to whether in conflict. work, the medical evidence was his sioned pointed page 541, out, at that: Mr. Justice Currie unexplained evi- credible “All that must be found is issue, finding. respect to supporting dence With this compensation where mine-run case this ais workmen’s sharp Therefore, a testimony conflict. the medical finding aon conclusive way thе commission is either reviewing court.” application of the A different second somewhat Mary’s Congregation v. Industrial St. utilized in rule was 19, 2d written N. W. Comm. Wis. where the issue was whether Chief Justice Mr. Fritz, independent an em- contractor or an one Zacharias was had pastor church ployee. stated he right This the details Zacharias’ work. to control *13 explanation alone and considered without statement support employer-employee relationship. would an On hand, undisputed the other there were other facts which pastor congregation pos- showed that of the did not any knowledge carpentry sess skill or of which would have him enabled to control the of the detаils work done facts, Zacharias. Under that of state Mr. Chief Jus- stated, page tice Fritz at 534: undisputed clearly “These facts establish the re- that
lationship independent Congregation of to the Zacharias that was employee, contractor and not an and com- pletely explain away any which, other in facts the record standing might alone unexplained, support tend to findings.” (Emphasis supplied.) commission’s Wagner 553, In v. Industrial Comm. 273 Wis. 264, 2d N. W. 80 N. 2d relied W. commission upon the of three statement doctors for its conclusion permanent disability. there no was Mr. Justice reviewing pointed record, that, al- out Currie, though three testified either that doctors hands man’s recovered,” “completеly “normal” were or that he was perusal testimony balance of their it clear made only clearing up that this evidence referred to the of the applicant’s effects the dermatitis on the visible hands disabling sensitivity did relate applicant result further attacks of dermatitis if the go shop. should back work a machine Justice Mr. stated, page at 565: Currie testimony “The cited doctors trial court above-quoted paragraph in the sion was not would deci- its memorandum which, evidence, unexplained, ‘credible of the commission’ permanent disability [citing They no were cases]. merely isolated taken out of which statements context completely explained by testimony givеn by are other physicians. same is not a these This situation having given conflicting testimony because, same witness situation, may commission such base its decision *14 testimony conflicting pieces it of on which the two no review, have and, on a court would believe, to chooses finding.” weigh
power to evidence and disturb such the supra, Shawley Case, Mr. apparent that in It is the “unexplained” rule meant that the Justice stated Currie com in conflict the evidence was that where credible believe, testimony that could choose which to mission by itself, and that testimony to be considered such was explain to not to used credible evidence other was accepted instancе, to be In that the evidence was it. unexplained. Mary’s Congregation Case, Chief Jus-
In the St. Mr. pastor, accept tice Fritz refused to the statement employee, face, an credible on that Zacharias its was explain other conclu- rather looked to facts that but away. instance, that it In that the court stated sion away upon explained look to facts that the facts grounded finding. its The ra- which commission “unexplained” tionale used therein the use employed Shawley, for in rule was different than that Shawley supporting only the the commission’s to to was resorted sustain commission. Mary’s appears clearly Case result to be cor- St. rect, merely pastor’s but not on basis that testi- away. mony explained Rather, pastor’s testimony was obviously that he controlled the details of the work was evidentiary not an law and fact but conclusion findings. which would commission’s apparent Wagner approach that It is taken v. Comm., supra, result, Industrial also reaches a correct “unexplained” appear does but it not that test was necessary question at to arrive result. The Wagner permanently was disabled whether the one signs commission, faced and whether the visible original disappeared dermatitis had of his was irrelevant question of basic whether his skin had been sensitized so that he could not do his chosen work the future. prop- The decision сould have been reached erly, only “unexplained” rule, on the basis ground but also upon on the the facts which the findings depended commission’s were irrelevant to the real issue. *15 point out,
We these cases in not the contention that application “unexplained” was error in the of the instances, in rule these rather but to rule show that the given meanings been has various as a rationale for reaching legally justifiable a conclusion when that con- clusion could have been de reached hors the rule. In question each case the boiled down to whether evi- the by relied on dence the commission was sufficient to support finding light the in of whether it was relevant probative upon and or rested a conclusion rather than a factual merely basis. credibility These are tests relevancy in the traditional sense.
If the evidence nonprobative, is irrelevant or it can- support finding not department. a of the are of We opinion “unexplained” rule, properly applied, merely that, upon means evidence relied department credible, relevant, is probative, a re- viewing court contradictory should look to in facts attempt explain away an to premise the factual on which is made. We believe that this is the true meaning Wigmore taken from ap test and first plied Dry supra. in the Hills Case, Goods The test Dry Hills Goods taken 5 Wigmore, frоm Evidence (2d ed.), 2494, p. 459, appears Wig sec. and now in 9 more, (3d ed., Evidence 1940), 2494, pp. sec. 293-300. problem not, discussed in main, this section is in the question of what facts will agency, an administrative but rather what is evidence get jury to to a in sufficient a common law trial. The Wigmore permit rule plaintiff favored would a 546 ruling judge, a
avoid directed verdict when a on against plaintiff, motion to direct the verdict can question: answer in the affirmative the “ ‘Are there evidence which if unanswered facts justify ordinary men of in to reason and fairness affirming question plaintiff which bound is supplied.) supra, p. (Emphasis Wigmore, maintain?’” Dry test, adopted
This
Hills
Goods
which was
Case,
simply
is
evidence
to be
considered most
favorаbly
though
plaintiff,
plaintiff’s
to the
is,
course,
were unanswered
the defendant.
This
today
guiding
judge
the rule
that Wisconsin follows
a
question
on the
of a directed verdict:
only
against
plaintiff
“A verdict should
be directed
plaintiff’s evidence, giving
where
it the
favorable
most
reasonably bear,
construction it will
is insufficient
plaintiff’s
Baumgarten
sustain
verdict
favor.
v.
(1963),
(2d) 467,
609;
Jones
Rudzinski v.
(2d)
Wis.
N. W.
(2d)
Warner Theatres
16 Wis.
*16
466;
(2d)
114
Grady
N.
(1963),
W.
and Schlueter v.
(2d) 546, 123
(2d)
Wis.
N.
W.
“Therefore,
only necessary
deem
we
it
to
forth
set
plaintiff.”
the
Zupan
evidence favorable to
Wallow v.
195, 198,
35 Wis. 2d
is within the cy. contrary appellant’s con- noted, to
It be should also prove applicant tention, duty not to of the is that the merely evidence, preponderance but of the his case findings produce will that to credible evidence such speculation. upon upon conjecture or rest and not facts statute, compelled by view, Under this which is findings obliged uphold department’s even are to we great weight they contrary though and clear to the be Conley Industrial preponderance of the v. evidence. 71, 85, 140 2d N. 2d Comm. 30 Wis. W. appellant in error when it also conclude that is We duty of the circuit court that it is the or contends weigh evidence, sufficiency at court to this favoring party that evidence one to least the sense is court, weighed against supporting another. that weigh duty however, to relied have evidence does department upon to determine whether that evi- finding justify to made. If sufficient dence is relevant, credible, probative and evidence and is favorably justify men of evidence construed most finding, ordinary make reason and fairness to upon A such is sufficient. should rest evidence upon upon a mere or and not scintilla еvidence evidence is, course, conjecture speculation. prop- This test Compensation Act and er under the Workmen’s is generally applicable opinion review made this agencies. of administrative of the decisions conclude, therefore, instant case the We simply any credible whether there was evidence test department. support the of the We sufficient undisputed facts, supra, sustains think the recital findings. Company Madden The evidence which the merely contradictory sup upon is to that which relies findings. department’s ample ports There is to create the reasonable inference sufficient *18 ramp slipped on the and the machine backwards injured were worn. because the drive wheels Manthe findings to the there sustain was also While findings urged Company, not such are the Madden Comm., v. Industrial in Unruh us. As we stated before supra: question credible evi- not whether is “The is finding in to the commission dence did not the record sustain any make, credible evidence but whether there is did make.”
to the commission sustain the arguable though merit doubtful While there was appeal appellant’s were viewed contention this rule, confusing posture “unexplained” from the light of the test of whether there was viewed when depart- any to credible evidence sufficient sustain findings, of Madden al- the contention becomes ment’s evidence in the recоrd frivolous. There is credible most made. challenging findings, con- In Madden addition safety requires it order invalid because tends machinery employer in a to maintain “safe” condi- “reasonably condition. The rather than safe” tion provides, equipment, tools, safety “All machine order machinery guards power-driven shall maintained be condition.” Our review of record in safe indicates challenged validity by ap- rule this prior appeal. (e), Stats., pellant (2) to this Sec. 227.05 provides: Declaratory judgment proceedings. (1) . . . . “227.05 “(2) validity may any of a rule determined in following judicial proceedings when material there- in: “(a) .... Proceedings “(e) under 227.15 to ss. 227.21 or under 102 or 108 for review of of ad- ch. decisiоns orders agencies provided validity
ministrative rule duly challenged proceeding involved was before sought agency in order or decision to be which the reviewed was made or entered.” 101.13, Stats., provides:
Sec.
*19
All or-
“101.13 Orders of commission declared lawful.
conformity with
ders of the
commission in
industrial
lawful;
force,
prima
law shall
in
and shall be
facie
be
force,
prima
and
and all
shall be valid and in
such orders
they
until
are
other-
facie reasonable and lawful
found
judicial
pursuant
upon
chapter
wise
227
thereof
review
to
by
or until altered or revoked
the
commission.”
apparent
judicial
It
of the
is
the
review
order
brought pursuant
227.05,
not
to
It
was
sec.
Stats.
was
challenged
department.
pre-
not
the
before
We have
viously
“specified
prescribed
held that a
for
method
agency’s
an
review of
administrative
order is exclusive
.”
Public
. . .
Cobb v.
Service Comm.
12 Wis.
441, 457,
2d
We should also the the instant department that, merely did not conclude because happened, accident the machine unsafe. In was respect upon by ap- it differs from the relied cases pellant. Rather, department required em- ployee prove worn, that the drive wheels were and that they perfectly made the machine unsafe to use. It is department interpreted duty clear that of the employer furnishing absolutely to be not that an safe reasonably but one that machine safe. While the point advertence to does not this our determina- control permit validity to safety tion not review order, apparent interpret- it is that the order inwas fact way appellant in in ed which the believes it must to withstand attack. point department also out that the We based its award only compensation upon extra the violation of place safety upon a violation of safe order but challenged. not been statute. This has findings sup- are conclude that We commission’s and, accordingly, ported credible evidence sufficient findings affirming judgment those the circuit court’s upheld. bewill Judgment
By the affirmed. Court. — up-to-now (concurring). J. W. Hansen, Robert required evidentiary support for test Wisconsin as compensation department of fact in workmen’s Wigmore test, adopted 1935,1 been the has cases Wigmore, 1953,2 that, altered somewhat stated asked: “Are facts in evidence which unanswered ordinary justify men of reason fairness affirming plaintiff question bound which *20 maintain ?” majority opin- test, as stated
The from-now-on the ion, to be: is probative credible, relevant, “If there and evidence is favorably jus- and that construed most evidence
tify ordinary men of and fairness to make that reason finding, the evidence is sufficient.” supportive restatement of the test of evidence This enlarge not, agency it, I nar- for does as see or scope judicial It row the review. substitutes “evidence favorably” Wigmore language, for the construed most may clarify, if unanswered.” This but “evidence which 1 Wigmore good suggested by perhaps Mr. is as “The test as Dry any suggested.” Hills v. Industrial can be Goods Co. 76, 83, (1935), 258 336. Comm. Wis. N. W. 217 “ 2 ‘Unexplained’ expression to be a more accurate would seem ” Transport Motor Co. Public Service Comm. than ‘unanswered.’ v. 46, 31, 56 2d 548. 263 Wis. N. W. 3 Evidence, Wig- Wigmore, (2d ed.), 2494, p. 459, sec. 9 5 now Evidence, ed.), p. more, (3d sec.
552 change measuring be appear
it stick to does not to agency as the used. Both leave with trier versions credibility. incorporate all Both faсt issues of ordinary and Both “men of reason fairness” standard. have standard set the same essential elements. So the higher by the no and no lower than that new test seems required by Wigmore rule. phrasings put on Both bones of flesh bare supported
“. . . In evidence” standard review. interpreting phrase Supreme exact the United States this requirement Court added be the evidence must enough justify, if jury, to a the trial were to a refusal verdict, stating: to a direct read “This Court ‘evidence’ to mean ‘substantial evi ‘ dence,’ dence is more cited) (case and said we ubstantial evi [s] than a mere It scintilla. means such might accept
relevant evidence as a
reasonable mind
adequate
(case cited)
to
a conclusion.’
it
...
enough
must
a
to
justify,
jury,
be
were
trial
to a
a
sought
to direct
verdict when the conclusion
refusal
jury.”
it
drawn
is one
(Em
from
of fact for
phasis supplied.)
analogy suggested
reviewing
between
a
of fact of
agency
reviewing
an administrative
re-
a
fusal to
(where
direct
verdict
law
at
lack
substantial
right
verdict)
is
test of the
to a directed
good
Wigmore
makes
fact,
In
sense.
test came from
dealing
the section of his text
with
what amount
get
required
jury
evidence was
case to
in a
accept
action.
common-law
The writer would
and state
analogy
agency
jury.
between
However,
it
*21
analogy
not to
concurring opinion
such
that
this
is ad-
dressed.
it
holding
Rather
is the Universal Camera
4
original Wagner
provided
Act
of the Na
tional
supported by
Labor
evidence,
Relations Board if “. . .
shall
July 5, 1935,
be conclusive.” Act of
(e),
449,
sec. 10
49 Stat.
5
Corp.
Universal Camera
v. National Labor Relations Board
474,
Sup.
456,
340 U. S.
71
Ct.
553 evidence” read mean “substantial “evidence” is to be requirement. by supported applying evidence” a “. . . supported holds, . “. . if, Camera as Universal For by evi- supported “. . . substantial by means evidence” majori- dence,” reference for the there is no basis being for review different ty opinion standard to there compensation than cases for workmen’s in Wisconsin rea- no types There then would be of review. for other stating paraphrased to suffi- test as son for proper under evidentiary support “. . ciency . was by this Compensation Act,” “. . . not but the Workmen’s generally applicable.” opinion Nor made Transport distinguish Co. Case Motor reason to be governed involving proceeding that was “. . a. Act, in which Procedure 227, Administrative ch. Uniform ‘any evidence’ but credible ‘substantial is not the test ” 6 record.’ of the entire in view evidence compensation and unem- that workmen’s is true It specifically not included when the ployment were cases adopted in Act was Procedures Administrative Uniform findings are Wisconsin, providing that administrative unsupported evidence substantial if “. . . reversible 7 record as submitted.” of thе entire in view reasoning Universal Cam- of the However, unless ignored, adoption repudiated result era or its Case not did Procedures Act Wisconsin Uniform required quantum of to the evidence add “substantial” merely spelled agency of fact. It an to sustain already amend- requirement there. The that was out enlarge scope judicial clarified, did not but ment a uniform act it the fact or without With review. supported test in Comparing evidence” -work . . unsupported by compensation . . substan cases with men’s record as submitted” test of the entire in view tial Comm., Transport Public appeals, Co. v. Service types in Motor 43, pp. 44, supra, this court concluded . . there would footnote little, any, in effect them.” appear distinction between (d), (1) Stats. Sec. 227.20
554 ordinary that “men of reason and not fairness” would strong find unsubstantial firm evidence foundation or enough superstructure. much of a question statutory
This interpreta the exact tion that came Supreme before the United States Court in the There, Universal Camera Case. Co. noted above, original Wagner provided Act had that find ings by supported by evidence, labor board “. . . 8 shall be Subsequently, Congress conclusive.” adopted the test of the Uniform Act, Administrative Procedures to wit: that board sup were conclusive “. . . ported by substantial evidence on the record considered 9 as a adoption whole.” Did the of this amendment from the Uniform Administrative Procedures Act broaden the scope judicial changed review? Had it the test as to required evidentiary support rulings for No, board ? not all, high at Congress only nation’s ruled. court had “. . . reviewing made it clear that a court is barred setting from aside a Board decision when it cannot con scientiously find that supporting the evidence that de substantial, cision is light when viewed in the entirety record in furnishes, its including body 10 opposed to the Board’s view.” The writer would reasoning follow the and result of the Universal Camera Co. Case to hold sup- that the “. .. ported by supported evidence” test means “. . . evi- dence that is substantial evidence in view of the entire record as submitted.” Tо do so is to do no more than submit that ordinary the “men of reason and fairness” standard is not met if a (un- based on “. . . substantial evidence in (less view of than) the entire record upheld. as submitted” is goes The difference beyond semantics to an insistence that Wisconsin has
8 Supra, footnote 4. 9 (1946 Supp. Stat. 29 U. Ill) S. C. (e). see. 160 01 Corp. Universal Camera v. National Board, Labor Relations supra, 5, page footnote single appeals court all of review on standard granted agency rulings. It administrative *23 Unemployment Compensa- Compensation and Workmen’s liberally accomplish to are to tion Acts construed be legislation, fact purposes of but that such beneficent require justify upholding de- or awards does nor are not evi- nials of that based on substantial awards of entire record. dence in view the suggests critic, prophet, not In the role of the writer majority by noted will itself the distinction upheld judicial that, on become unsubstantial be agen- findings of all review, all fact administrative categories cases, in all of workmen’s in this state cies single included, compensation will have to meet they supported requirement “. . . substantial record view the entire as submitted” evidence substantiality henceforth to test be: with the probative credible, relevant and “Is favorably justify construed most would men which ordinary make reason and fairness fact involved?” hold fact and
The writer would challenged based are here are inferences thereon that submitted, supported, record as view entire evidence, and affirm. substantial