Lezala v. Jazek

The following opinion was filed December 2, 1919: Owen, J. Although neither Tony Wojoiechozvski nor the Insurance Company appealed from the judgments of the circuit court affirming the award, they have filed briefs, evidently upon the assumption that this court, upon the appeal of Helen Lezala only, will review alleged errors of the Industrial Commission so far as they affect the award against them. That a judgment of the circuit court is binding and conclusive upon all affected thereby until reversed upon the appeal of those claiming it to be erroneous, and that upon the appeal of one judgment defendant this court cannot disturb the judgment as to non-appealing defendants, seems to us too plain for argument or the citation of authority. Tony Wojoiechowski and the Workmen’s Compensation Mutual Liability Insurance Company not having appealed from the judgments, this court cannot, upon the appeal of Helen Lezala, inquire into alleged errors affecting the judgments against them. Upon this appeal the court can do no more than to review the record in so far as it affects the only appealing judgment defendant, Helen Lezala. Tliis [535] court cannot disturb the judgments in so far as they affect those who are not appealing therefrom. For this reason the contentions urged by the non-appealing judgment defendants will not be considered. At the very outset Helen Lezala contends that there was no evidence justifying the finding of the Commission that the applicant, Jazek, was in her employ at the time of the accident. The Commission found that on the day the injury was sustained “the applicant was in the employ of .the respondents Frank Lezala and Helen Lezala There is no finding as to the relationship existing between Frank Lezala and Helen Lezala. The record discloses that they are husband and wife, but whether the Commission considered them as partners, or Frank Lezala as the agent of Helen Lezala, his undisclosed principal, or what their business relationship was, does not appear. The evidence taken by the Industrial Commission shows that Frank Lezala was in fact a mason plasterer contractor and had been such for many years; that the subcontract with Wojoiechowski was in his name; that he had about twelve men working for him at the time, whom he hired and discharged, and, to all appearances, was the only person who had any voice or interest in the business. The only scrap of evidence in any manner connecting Helen Lezala with the business was the testimony of two workmen who had worked for Frank Lezala to the effect that they were paid by checks and that Helen Lezala’s name was on such checks. These men testified that Helen Lezala’s name was on top and Frank Lezala’s was below. “She made out the check .and he put his name to that — he signed below.” Evidently the Industrial Commission considered this testimony evidence of the fact that Helen Lezala was in some manner, not very clear to the Commission itself, interested in said business with her husband. While it is true that if in any reasonable view of the evidence it will support either directly or by fair inference [536] the findings made by the Commission, such findings are conclusive upon the court (Oldenberg v. Industrial Comm. 159 Wis. 333, 150 N. W. 444; Milwaukee Western F. Co. v. Industrial Comm. 159 Wis. 635, 150 N. W. 998; Milwaukee v. Industrial Comm. 160 Wis. 238, 151 N. W. 247), every finding of fact made by the Commission must have some substantial evidence in its support, though not necessarily the preponderance of the evidence. A finding of fact made by the Commission cannot be based upon mere conjecture, any more than, a finding of fact-made by the court. Voelz v. Industrial Comm. 161 Wis. 240, 242, 152 N. W. 830. The following language found in Hyer v. Janesville, 101 Wis. 371, 77 N. W. 729, is as applicable to the findings of the Commission*as it was to the verdict of the jury there under consideration. In that case this court said: “To allow a jury to reach a conclusion in favor of the party on whom the burden of proof rests, by merely theorizing and conjecturing, will not do. There must at least be sufficient evidence to remove the question from the-realms of mere conjecture.” . Granting that her name was on the check, we can do no more than speculate as' to the significance thereof. Its presence might have been due to numerous reasons. In our judgment, the inference that Helen Lezala was in any manner interested in the business with her husband does not fairly arise from the circumstance. This being the only evidence justifying the finding of the Commission that Helen Lezala was the employer of the applicant at the time of the injury, the finding cannot be sustained. This conclusion effectually disposes of the case so far as Helen Lezala is concerned, and the numerous other questions urged as grounds for a reversal of the judgment as to her need not be considered. By the Court. — The judgments of the circuit court affirming the award of the Industrial Commission as to the de [537] fendant Helen Lezala are reversed, and cause remanded with directions to set aside the award of the Industrial Commission as to the defendant Helen Lezala. No costs allowed. The.following opinion was filed February 10, 1920: