Tewes v. Industrial Commission

194 Wis. 489 | Wis. | 1928

The following opinion was filed November 8, 1927:

Rosenberry, J.

The sole question presented here is whether or not there is evidence sufficient to sustain the finding of the Industrial Commission that the deceased employees were at the time they met their death performing services growing out of and incidental to their employment. Workmen’s Compensation Act, sub. (2), sec. 102.03.

It is undisputed that if they were not performing service growing out of and incidental to their employment the master is not liable under the workmen’s compensation act. Radtke Bros. & Korsch Co. v. Rutzinski, 174 Wis. 212, 183 N. W. 168; Hoenig v. Industrial Comm. 159 Wis. 646, 150 N. W. 996. It is equally well established that the findings of the Industrial Commission must be supported by evidence and cannot be sustained if they are based upon mere conjecture. Wm. Esser & Co. v. Industrial Comm. 191 Wis. 473, 211 N. W. 150; Lewis v. Industrial Comm. 178 Wis. 449, 190 N. W. 101. There is no direct evidence in the case which shows what the deceased employees were doing at the time immediately preceding the instant they were precipitated into the water in the open channel. It does appear, however, without dispute, that they were old experienced and reliable men who needed no instructions from their superiors with respect to the performance of their duties; that they entered upon the performance of their duties as employees and were engaged in the performance of those' duties when last seen alive. It further appears that their bodies were found in the open channel at a point where they might properly be in the discharge of their duties; that their watches stopped one at 9: 42 and one at 9: 47. They were last seen alive a little before 8 o’clock. There is no circumstance disclosed by the evidence which shows that they had departed from the course of their employment. 'It is argued that because the night was not cold and the fact as to the condition of the channel could have been better ascertained near shore, there was no necessity for them to go out along the channel for the purpose of inspection, and that they must therefore have been out along the channel for some purpose of their own. What such purpose was or might have been is not disclosed. Some suggestion is made that they may have started for the near-by village to spend the evening playing cards. If that was their purpose it would not have been necessary for them to go near the channel.

There being nothing in the evidence to show what the deceased employees were doing at the instant immediately preceding the accident, may it be inferred, nothing appearing to the contrary, they having entered upon the performance of their duties and being found at a point where they might properly be in the performance of their duties, that they continued in the discharge of their duties? It is certainly just as reasonable to suppose that one of the men may have fallen into the water and the other taken the automobile to go to his rescue with greater speed as it is to suppose that they were out there for no purpose whatever. But it is not necessary to make such a supposition or inference. It is not improbable that one of the men may have been engaged in taking the piece of ice out of the channel in accordance with the superintendent’s directions; that he fell in, and that his companion went to his rescue, using the automobile for that purpose.

It is considered that when it is established that employees have entered upon the performance of their duties and are found at a place where they might properly be in the discharge of those duties, nothing appearing to the contrary, the presumption of continuity obtains, and the evidentiary facts support the inference that at the time of the accident the employees were performing a service for the employer growing out of and incidental to their employment. Ellis v. State, 138 Wis. 513, 119 N. W. 1110; Heileman B. Co. v. Industrial Comm. 161 Wis. 46, 152 N. W. 446; Interlake P. & P. Co. v. Industrial Comm. 186 Wis. 228, 202 N. W. 175.

The circumstance most strongly relied upon to repel this presumption is the fact that the deceased employees were not accustomed to use the automobile in the discharge of their duties and that under ordinary circumstances it was not necessary for them to do so. No one knows the circumstances which induced one or the other or both of the deceased employees to use the automobile. It might have been properly employed in the discharge of their duties, it might have been used for some other purpose. No circumstance points significantly either way. In this situation it is considered that the presumption of the continuity of a state of things once established must prevail.

By the Court. — Judgment in each case affirmed, with costs.

A motion for a rehearing was denied, with $25 costs, on January 10, 1928.