Nekoosa-Edwards Paper Co. v. Industrial Commission

Timlixst, J. On January 23, 1913, the Industrial Commission made an award directing that the respondent pay to Miitie Smith the sum of $2,040 on account of the death of her husband, Pat Smith, while in the employment of respondent. March 24, 1913, in an action brought for that purpose, the circuit court for Dane county set aside this award on the ground that the Industrial Commission acted in excess of its powers in finding that the death of Pat Smith was not caused by wilful misconduct. ■ The finding of the Commission on this point was as follows: “The death of Pat Smith was proximately caused by accident and was not caused by wilful misconduct; that at the time of such accident Pat Smith was in an intoxicated condition which proximately caused the accident.” The statute (sec. 2394 — 4) provides that: “Liability for the compensation hereinafter provided for, in lieu of any other liability'whatsoever, shall exist against an employer for any personal injury accidentally sustained by his employee, and for his death, if the injury shall proximately cause death, in those cases where the following con-, ditions of compensation concur: ... (3) Where the injury is proximately caused by accident, and is not so caused.by wilful misconduct.” Sec. 2394 — 19. “The findings of fact made by the board acting within its powers shall, in the 'absence of fraud, be conclusive; . . . the same shall be set aside only upon the following grounds: (1) that the board acted without or in excess of its powers; (2) that the award was procured by fraud; (3) that the findings of fact by the board do not support the award.” It is quite, possible for a person to be in an intoxicated condition, which condition proximately caused the accident which proximately caused the death, and yet not be guilty of wilful misconduct. The drinking of intoxicating liquor is wilful in the sense of intentional, but the mere fact of drinking is not misconduct. By sec. 1561, Stats., any person [108] found, in any public place in sucb a state of intoxication as to disturb others, or unable by reason of bis condition to care for bis own safety or for tbe safety of others, is guilty of a misdemeanor. This is misconduct, and if one intentionally put himself in this condition he might be said to be guilty of wilful misconduct. But there are many cases where, although the drinking is intentional, the intoxication is not; as for instance where one by reason of fatigue, hunger, sickness, or some abnormal condition becomes intoxicated in consequence of imbibing a quantity of liquor which ordinarily would not so affect him. While intoxication in such case to the degree specified might be a misdemeanor under the statute quoted, it is not necessarily wilful misconduct within the compensation act. The intoxication might, under such circumstances, be the proximate, cause of an accident resulting in injury or death and yet not have reached that degree specified in this statute, as in case where it produced mere drowsiness. There was evidence in the instant case that deceased was slightly intoxicated; that he drove out of the clay pit standing up on his load; that he was perfectly able to take care of himself and drive his team when last seen alive. There was therefore room to find upon the evidence not only with respect to the degree of intoxication, but that there was no intention or purpose to put himself in a dangerous or helpless condition of intoxication. The Industrial Commission has jurisdiction to pass on, these very questions, and their finding above referred to does determine these questions. It finds that Smith was in an intoxicated condition which proximately caused the accident, but that the accident was not caused by wilful misconduct. This means that he did not wilfully bring upon himself such degree of intoxication. If we were authorized to review the evidence we might come to a different conclusion. But the statute is mandatory that the award shall not be set aside on such ground. The [109] Industrial Board bas jurisdiction to decide whether or not the intoxication which caused the death or injury was wilful; consequently it did not act in excess of its powers in deciding the negative in the instant case. There is no claim that the award was procured by fraud, and the findings of fact support the award. Hence, without reaching the interesting questions put forward in the briefs of counsel, we reverse the judgment of the circuit court and direct that the award of .the Industrial Commission be affirmed. By the Court. — Judgment reversed, and the cause remanded to the circuit court with directions to affirm the award of the Industrial Commission. '