7 N.W.2d 854 | Wis. | 1943
Action brought by Robert A. Johnston Company and its compensation insurance carrier against the defendants, Robert Gurrath and the Industrial Commission, to set aside an interlocutory award ordering plaintiffs to pay to Gurrath fifteen per cent increased compensation under sec.
"(c) The floor or ground surrounding machines shall be reasonably even, kept in good repair, free from obstruction over which persons may trip, and means provided to insure secure footing in so far as the nature of the work will permit."
The commission had not declared or prescribed by any order or otherwise what safety devices, safeguards, or other means or methods should be provided, or would be best adapted, to insure secure footing or render employees or the place of employment safe. The circuit court set aside the interlocutory *302 award on the grounds that subd. (c) of order No. 14 is unlawful because it is not a "reasonable order" in that the commission "is silent as to what device or safeguard is required in order to make . . . as free from danger as such place of employment may reasonably permit;" and that "the employer who is faced with a penalty . . . is entitled to know ahead of time what the commission is exacting of him by way of safeguard or device."
The commission and Gurrath contend that, in view of the provisions in sec.
The provisions as to prima facie reasonableness and lawfulness, and the validity, force, and effect, prescribed by sec.
It is not claimed by defendants that there was any failure to comply with subd. (c) of order No. 14 in so far as it provided that "the floor or ground surrounding machines shall be reasonably even, kept in good repair, free from obstruction over which persons may trip. . . ." The only failure relied upon is noncompliance with the remaining portion of subd. (c), which requires "means provided to insure secure footing in so far as the nature of the work will permit." In using but these words, the order is silent as to what safety device or safeguard is to be provided in order "to insure secure footing in so far as the nature of the work will permit." Moreover the use of but the language last quoted, without qualifying the verb "will permit" by the adverb "reasonably," or some synonymous word, renders the order invalid in that the language used is broader in meaning than the language of the statute, which, in requiring every employer to furnish a safe place of employment, "defines the term `safe,' as used in such connection, to mean `such freedom from danger to the life, health, safety or welfare of employees . . . as the nature of the employment, or place of employment . . . will reasonably permit.' Sec.
"As to said order No. 3502 this court held in Bentley Bros.v. Industrial Comm., supra, p. 613: `The language of the Industrial Commission, however, is broader than the language of the statute. The statute requires every employer to, furnish a safe place of employment (sec. 101.06), and defines the term "safe," as used in such connection, to mean "such freedom from danger to the life, health, safety or welfare of employees . . . as the nature of the employment or place of employment . . . will reasonably permit." Sec.
"That order No. 53 is subject to condemnation for the same reasons stated in the Bentley Case clearly appears when the plain ordinary meaning of the words `securely shored up.' is given consideration. . . . It appears that the words `safe' and `secure' are synonymous. If order No. 3502, which required the `scaffold to be safe,' was beyond the power of the commission to promulgate, then it seems clear that order No. 53, which requires excavations to be securely shored up, is equally beyond the power of the commission to promulgate, because it is an attempt at legislation and assumes to require that all excavations `be securely shored up.' It also seems clear . . . that so much of order No. 53 as applies to excavations, requiring them to be securely shored up, is not a reasonable order. If order No. 53 is given its plain ordinary meaning as applied to ditch construction excavations, then it becomes equally apparent that every cave-in resulting in injury will inevitably justify the imposition of a fifteen per cent penalty, because a mere cave-in would prima facie at least make out a penalty case. *305
The mere happening of the cave-in would probably justify the conclusion that the excavation was not `securely shored up.' We do not think that the statute giving authority to the commission justifies the promulgation of the order in its present form. In other words, we think that subs. (3) and (4) of sec.
By the Court. — Judgment affirmed.