Bekkedal Lumber Co. v. Industrial Commission

Eschweiler, J. The appellant contends that the facts in the record before the Commission were not such as to warrant the inference arrived at by the Commission that Perry’s death occurred while he was in the performance of his duty and in the master’s employment, and that such conclusion must have been based upon mere conjecture, and that therefore the claimant had not met the burden of proof imposed upon her under the law. It is also contended that there was no evidence showing that there was any reason for blowing up the tree near which Perry was found dead or that there was any further work of blasting required for the stump already partly blasted, which was near where his body was found, and that there was no foundation for the- suggestion by the Commission in their finding that Perry remained at the place after the crew went to- dinner in order to clear away the tree or stumps, and that therefore there was a total absence of evidence upon which might be predicated a finding that Perry met his death while within, the scope of his employment. It is undoubtedly the rule of law in this state that findings of the Industrial Commission must be supported by evidence and not based upon mere conjecture. Voelz v. Industrial Comm. 161 Wis. 240, 152 N. W. 830. The situation here was one clearly requiring the Commission to apply the well recognized presumption against suicide in such cases of accidental death. Milwaukee W. F. Co. v. Industrial Comm. 159 Wis. 635, 150 N. W. 998. With that presumption, therefore, and the facts disclosed in the testimony of Perry’s employment as foreman in charge of [234] the construction of this road; that explosives were properly-used in such work and under his direction; the partially exploded stump left in the road, or even the sapling near which he was found, upon either of which Perry might have been contemplating the use of dynamite, even though such use might not have been in accordance with the customary or economical way of constructing such a road, all presented a situation from which the conclusion might have been reasonably and properly drawn that whatever Perry was then doing was within what he then thought was his duty, rather than the conclusion that it was an intentionally self-inflicted injury. Within the broad field intended to be covered by our compensation act, we think the conclusion arrived at by the Commission was within their discretion. The result arrived at in this case is in harmony with such cases as Heileman B. Co. v. Shaw, 161 Wis. 443, 154 N. W. 631, where the injured body of the brewery workman was found in th§ building where he was employed with no evidence as to how he met his death; Haller v. Lansing, 195 Mich. 753, 162 N. W. 335, where the workman was injured by gasoline explosion in a tool shed where he was lighting his pipe after eating his lunch; State ex rel. Duluth B. & M. Co. v. District Court, 129 Minn. 176, 151 N. W. 912, where the employee was injured by the explosion of a cartridge shell supposed by him to be empty and which he was fashioning into a key for his own convenience in doing his work. We see a substantial difference between the facts in this case and those in the case relied upon by appellant (Savage’s Case, 222 Mass. 205, 110 N. E. 283), where a foundry employee was killed on the main track of the railroad eight feet away from the place where he had been at work on- a spur track unloading pig iron for the foundry, where no reason was shown for his leaving the place of his employment to go upon the railroad, for here the deceased was on a road which was being constructed under his direction and where. [235] his employment required him to be and while handling material which was used in construction work and under his control. ¡ i ! By the Court. — Judgment affirmed, with costs against the appellant. Owen, J., took no part.