Foster-Latimer Lumber Co. v. Industrial Commission

RoseNbebby, J. Two points are raised on the appeal: (1) That the circuit court had no jurisdiction to review the award of the Commission, and (2) that the evidence supports the finding that at the time of the accident Duane was performing service growing out of and incidental to his employment. 1. The findings and award were made and entered on April 30, 1917, and on May 7, 1917, the Commissionhav-ing its attention directed to the fact that the award should have been for five per cent, less on account of the age of the applicant, amended the findings and award accordingly. An action was begun to review the award of April 30, 1917. It is claimed that when the Commission modifies or changes its findings or award, the original order, findings, or award no longer have any force or vitality; that nothing of the original findings and award remain to be reviewed The power of the Commission to amend its findings and award is conferred by sec. 2394 — 17, Stats., the material part of which reads as follows: “The commission may on its own motion, modify or change its order, findings or award at any time within ten days from the date thereof 'if it shall discover any mistake therein.” The amendment contained no recital of the hearing, appearance of counsel, did not recite any new findings or award, but purported to be an amendment to the original award. We think the proceeding in this case was no more than an amendment, and that under the circumstances disclosed here the findings and award were made and entered on April 30, 1917, and that they were properly described in the complaint as having been entered on April 30, 1917, and that the matter was properly before the trial court. There [340] was no vacation of the order of April 30th; no change of any substantial part of the order, but a mere correction of the computation, based on facts previously found. 2. It appears from the memorandum filed by the Commission that “A freight train was just leaving the platform, and the applicant attempted to get aboard one of these cars and ride down to the station or warehouse near his home. In doing so he fell under the cars and sustained injuries necessitating the amputation of his left arm at the shoulder. The accident occurred on the premises of the employer.” And in the formal findings, “that at the time of the accident the applicant was going from his employment in the ordinary and usual way, while on the premises of his employer.” The trial court said: “The evidence warrants the finding that it was a common thing for employees to catch a ride on this train when it was on the switch track that served the mill, at the time the men quit work. But, as applicant and other witnesses testified it was ‘very seldom’ that switching was done at the time the men were quitting work. The applicant in fourteen years’ service at the mill could fix only two times when he had ridden on this train. The applicant further testified that the ‘usual way’ to go home was to walk along the platform that runs beside the switch track where he was injured and then ‘over the railway track, right of way, highway, and streets home.’ ” The question presented is, Does this evidence sustain the finding that the applicant was coming from his employment “in the ordinary and usual way” within the meaning of sub. (2) of sec. 2394 — 3, Stats. ? This provision of the statutes was added by the legislature of 1913. The legislature did not leave it to the courts to say whether or not an employee going to or leaving the place of his employment, under a given state of facts, was performing service growing out of and incidental to his employment, but limited the liability to cases where the employee was going to or from his employ [341] ment in tbe ordinary and. usual way. Some effect must be given to tbe words “in tbe ordinary and usual way.” ■ If any effect is given to these words, they must be held not to include an employee who is going to and from bis employment in any other than tbe ordinary and usual way. We think it clear in this case that catching a ride upon cars being switched in and out of the planing-mill yard was not a usual and ordinary way for employees of the planing mill to go to and from the place of their employment, and that there is no evidence to sustain a finding to that effect. It appears without dispute that the applicant had left the premises in that way only two times in fourteen years; that it was very seldom that switching was being done at the time the men were leaving; and while it does appear that other employees occasionally rode upon cars being switched, there is nothing to show that it was the usual and ordinary way for employees to leave the premises. If it had been the intent of the legislature to make the employer liable for all injuries sustained by the employee after he had completed his services and while he was leaving and still upon the premises of the employer, they would not have limited the employer’s liability to injuries sustained while going to and from his employment in the ordinary and usual way. Under familiar rules of construction, we cannot ignore these words or decline to give effect to the legislative intent clearly indicated by their use. By the Gourt. — Judgment affirmed. OweN, J., took no part.