Summary
In North End Foundry Co. v. Industrial Comm., 258 N.W. 439, the Supreme Court of Wisconsin held that disability within the compensation act occurs when the employee is disabled by physical inability to perform work in the usual and customary way; and that, in the absence of such disability, the employee sustains no compensable injury even though the employment may have subjected him to exposure which contributed to ultimate disability from the occupational disease of silicosis.
Summary of this case from Renfro v. Pittsburgh Plate Glass Co.Opinion
September 12, 1947. —
October 14, 1947.
APPEAL from a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Affirmed.
For the appellants there was a brief by Bloomquist Klueter of Milwaukee, and oral argument by J. A. Bloomquist.
For the respondent Industrial Commission there was a brief by the Attorney General and Mortimer Levitan, assistant attorney general, and oral argument by Mr. Levitan.
Henry J. Posner of Milwaukee, for the respondent Herman Staub.
This is an action to review an order of the Industrial Commission awarding compensation benefits to the defendant Herman Staub. Staub was employed by the plaintiff Foundry Company to unload rails from a car during a regular noon hour. Schmidt, a fellow worker endeavoring to sleep, became incensed at the noise occasioned by the defendant's work and indulged in some rather uncomplimentary comments. Staub descended from the car upon which he was stationed and picked up a steel bar about fifteen inches long and weighing about four or five pounds. Schmidt retreated from the scene. As to whether Staub followed Schmidt, there is some question. Staub testified that he started toward the office for the purpose of reporting Schmidt to his superiors. He said he carried the bar to protect himself in the event Schmidt attacked him. As he approached the vicinity of the office he saw Schmidt and other fellow workers and deviated from a direct line of travel to the office by approaching them with the steel bar in his hand. He stated that his purpose in doing so was to inquire as to Schmidt's name. Schmidt was known to him only as Schmitty. He did inquire, but during the course of the conversation one of the bystander fellow employees attempted to take the bar from him and he fell and was injured during the resulting scuffle. There was some testimony by the other employees that Staub's manner was threatening, that he was belligerent, that he threatened to strike one of them and that the seizure was in self-defense. Staub denied that he had any such intention or that he intended to provoke a fight.
The Industrial Commission found in accordance with Staub's version and entered an award in his favor. The trial court disagreed with the commission's findings as to Staub's responsibility for the trouble, but held that he was entitled to compensation in spite of the fact that he was the aggressor. The plaintiff Foundry Company and its insurance carrier appeal.
The questions at issue are whether at the time of his injury Staub was performing service growing out of and incidental to his employment and whether the injury arose out of his employment. Sec. 102.03, Stats. The Industrial Commission answered both questions in the affirmative. It is the function of the court to determine whether there is any credible evidence to support that conclusion.
There was credible evidence that Staub was proceeding on his way to report Schmidt's interference with his work, that he deviated only for the purpose of inquiring as to Schmidt's name and was assaulted while making the inquiry. He was furthering his employer's interest in reporting Schmidt's interference with his work and in so doing he was performing services growing out of and incidental to his employment, as we have interpreted the statutory language. Anderson v. Industrial Comm. (1947) 250 Wis. 330, 27 N.W.2d 499.
The commission was also justified in determining that the injury arose out of the employment. Such assaults are just as much an employment hazard as the playful assault in Badger F. Co. v. Industrial Comm. (1928) 195 Wis. 134, 217 N.W. 734, where an employee was struck in the eye by a nail thrown by a fellow employee. Both are common hazards where employees are thrown together by the nature of their work.
We do not determine whether Staub's injury would be compensable in the event the evidence required the conclusion that he followed Schmidt for the purpose of attacking him and was intent upon carrying out that purpose at the time of his injury.
By the Court. — Judgment affirmed.