202 Wis. 595 | Wis. | 1930
Lead Opinion
The facts are not in dispute. Willie Haney Alexander, applicant before the Industrial Commission, is the widow of James Alexander, who came to his death on September 19, 1928, while in the employ of Wenzel & Henoch Construction Company and while working at the bottom of an open trench being dug by said company on the east side of Lake Drive in Fox Point, Wisconsin. The trench was about sixteen feet deep and about twenty-seven inches wide. It was being excavated by a trenching machine which had a boom about thirty feet long on which was an endless belt or chain carrying digging buckets. The end of the boom was six feet above the surface of the ground, the lower end being at the bottom of the trench. The nature of the soil through which this trench was being dug was hard clay. The soil was not sandy or wet or liable to cave in as the word “liable” is' ordinarily used. The sides of the trench were shored up with two-by-six maple planks placed in pairs and spaced about two or two and one-half feet apart along the sides of the trench, each pair of planks being supported by four hardwood struts or braces placed between them. At the time of the accident a brace had been placed about one and one-half feet from the lower end of the boom. From the last brace just mentioned there was exposed on each side of the trench above the boom a triangular surface about fourteen feet in length along the surface of the ground from the last brace to the point where the top edge of the boom came out of the ground. These triangular surfaces of the ditch were supported by a pair of braces placed six or seven feet ahead of the long perpendicular brace. These braces were five feet in length and were supported by hardwood struts between them. Alexander’s work was
On January 9, 1929, the commission entered its award directing the payment of the primary compensation to the applicant, but reserved the right to determine any liability for increased compensation because of any failure of the employer to comply with any law of the state or lawful order of the commission. Thereafter, on February 12, 1929, a hearing was held and the commission decided that increased compensation was payable to the applicant because of a violation of order No. 53. No question is raised herein as to the primary compensation.
The plaintiffs contend that the Industrial Commission was without authority to promulgate said order No. 53. That said order is, under the decisions of this court, an attempt at legislation and was beyond the power of the commission to promulgate. Order No. 53 is as follows:
“Order 53. Excavations. All excavations, when so lo*599 cated that persons may accidentally fall into them, must be guarded, and at night must be equipped with a red light. All excavations which are located in sandy or wet soil, or any soil which is liable to cave in, must be securely shored up.”
The part of said order which is claimed to be legislative and unreasonable is as follows: “All excavations which are located in sandy or wet soil, or any soil which is liable to cave in, must be securely shored up.”
In order to justify the fifteen per cent, penalty it must appear that the injury was caused “by the failure of the employer to comply with any statute of the state or any lawful order of the Industrial Commission.” Sec. 102.09 (5) (h), Stats. The plaintiffs contend that order No. 53, under the decisions of this court, was not a “lawful order.”
It is' the duty of every employer to “furnish a place of employment which shall be safe for employees therein and for frequenters thereof and shall furnish and use safety devices and safeguards.” Sec. 101.06.
The term “safe” is defined by statute as follows: “The term safe . . .as applied to an employment or a place of employment . . . shall mean such freedom from danger to the life, health, safety or welfare of employees . , . as the nature of the employment, place of employment . . . will reasonably permit.” Sec. 101.01 (11).
The Industrial Commission is authorized by statute as follows:
Sec. 101.10 (3). “To investigate, ascertain, declare and. prescribe what safety devices, safeguards or other means or methods of protection are best adapted to render the employees of every employment and place'of employment.and frequenters of every place of employment safe, and to protect their welfare as required by law or'lawful orders. . . .
“ (4) To ascertain and fix such reasonable standards and to prescribe, modify and enforce such reasonable orders for the adoption of safety deiñces, safeguards and other means or methods of protection to be as nearly uniform as possible, as may be necessary to carry out all laws and lawful*600 orders relative to the protection of the life, health, safety and welfare of employees. . .
This court, in Bentley Bros. v. Industrial Comm. 194 Wis. 610, 614, 217 N. W. 316, construed these statutes conferring authority upon the Industrial Commission as follows:
“In other words, it is the duty of the Industrial Commission to ascertain what safety devices or safeguards will make various places of employment as free from danger as the employment or place of employment may reasonably permit, and to require the installation of such safeguards and safety devices. That is the duty enjoined upon the Industrial Commission, and it marks the extent of its authority.”
Does order No. 53, when applied to ditch excavations, require the installation of such safeguards and safety devices as will make such places of employment as free from danger as the employment or place of employment may reasonably permit? The court has concluded that it does not and that this case is ruled by Bentley Bros. v. Industrial Comm., supra.
Order No. 53, requiring excavations to be “securely shored up,” is as much of “an attempt at legislation, pure and simple,” as was general order No. 3502 involved in the Bentley Case, which order was as follows: “Safe and appropriate scaffolds shall be provided for workmen in exposed or elevated places.” 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*601 nature of the employment or place of employment . . . will reasonably permit. Sec. 101.01 (11). It will thus be seen that while the statute requires the place of employment to be as free from danger as the nature of the employment will reasonably permit, the order of the Industrial Commission lays out of consideration the question of reasonableness and assumes to require all scaffolds to be safe. That this is an attempt at legislation, pure and simple, is apparent. That it is ineffective, and beyond the power of the Industrial Commission, is just as manifest.”
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. Webster’s New International Dictionary defines “secure” as follows: “Not exposed to danger; safe, as, secure from foes.” “So strong, stable,1 or firm as to insure safety; safe.” The Century Dictionary and Cyclopedia defines “securely” as follows: “Without risk or danger; in security; safely.” “Firmly, in such a manner as to prevent failure or accident; so that loss, escape, injury, or damage may not result; as, to fasten a thing securely.” 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 to the court 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
It further appears that the commission’s own experts and investigators were not in accord as to whether the instant case was one in which the penalty should be inflicted. On
“It might be possible to shore the unprotected side walls on an angle with the boom to prevent such slides, especially on jobs where the depth of the trench is over ten feet.”
In reply to this' letter Mr. Satterfield, assistant engineer, wrote Mr. Doyle among other things as follows:
“We doubt the advisability of submitting this case under the conclusion that order No. 53 was violated. We have had a number of accidental injuries occurring in this way, and so far it has not been considered practical to shore that section of the trench walls immediately over the extended boom of the digging machine. It is the writer’s opinion that to attempt the shoring in the way suggested would add an additional hazard in that the workman, in placing such shoring, would be subjected to contact with the moving conveyor.”
It is therefore apparent that order No. 53 gave no definite information as to what would be a compliance therewith.
While the workmen’s compensation act should be liberally construed, to which proposition we give our whole-hearted accord, we feel that orders promulgated by the Industrial Commission which necessarily and properly result in the infliction of’ a penalty, if violated, ought tO’ be reasonably clear so as to give notice to employers as to what is reasonably expected of them in complying with such orders.
For the reasons stated it is held that so much of general order No. 53 as requires all excavations merely to be “securely shored up” was beyond the power of the commission to promulgate.
The Industrial' Commission ought to have no difficulty in promulgating a new order as a substitute for order No. 53 condemned herein, which will not be legislative in character, will be sufficiently plain in its requirements to be reasonable
By the Court. — Judgment reversed, and cause remanded with directions to render judgment setting aside the fifteen per cent, penalty award herein.
Dissenting Opinion
(dissenting). The opinion of the court holds the provisions of Industrial Commission order No. 53, in so far as it requires “all excavations which are located in sandy or wet soil, or any soil which is liable to cave in, must be securely shored up,” to be unlawful and beyond the power of the commission. To this I cannot assent. It is said that this conclusion is compelled by Bentley Bros. v. Industrial Comm. 194 Wis. 610, 217 N. W. 316. I see no similarity between the two cases. The language of the order there under consideration was: “Safe and appropriate scaffolds shall be provided for workmen in exposed or elevated places.” This order prescribed no “safety device, safeguard, or other means or methods of protection.” It simply provided that all scaffolds should be safe. It did not say that scaffolds should be equipped with a railing, nor did it prescribe any other safeguard that should be adopted or employed for the purpose of making scaffolds a safe place upon which to work.
The situation here is altogether different. This order does specify a safeguard. It requires ditches to be shored up. It specifies something that is not specified in the statute. The statute merely prescribes that the trench shall be maintained as a reasonably safe place in which to work. The order of the Industrial Commission says that to make it such a reasonably safe place in which to work it shall be
As the opinion does not discuss the question of whether there was in fact a violation of the order, I express no opinion thereon. I dissent from the conclusion that the order is unlawful.
