Pruno v. Industrial Commission

The following opinion was filed April 7, 1925: Rosenberry, J. The order of the Industrial Commission can be set aside only upon one of the following grounds: (a) that the Commission acted without or in excess of its powers; (b) that the order or award was procured by fraud; (c) that the findings of fact by the Commission do not support the order or award. It has been repeatedly held that when there is competent credible evidence sufficient to sustain the findings of the Commission it cannot be said to act in excess of or beyond its powers. Here, however, it is considered that the undisputed testimony shows that Pruno was employed to do but one thing — to explode a blast of dynamite in the bottom of the well. It was all that he was requested to do and all that he attempted to do. He had nothing to do with the removal of the rock from the bottom of the well nor was he concerned, except in a neighborly way, with the result of the blast which he had placed in the well. It was no part of his duty to remove the rock. The entire argument in this case in support of the award rests upon the proposition that Pruno undertook to blast “out” the rock. This is construed to mean that he undertook to remove the rock as an obstruction to the further progress of Olson’s work. This is a wholly unwarranted inference and one which to any one with the slightest degree of familiarity with the way in which this work is carried on, under the circumstances as shown by the evidence in this case, is beyond the field of reasonable inference. He was repeating the operation which had been theretofore performed by two other men, to wit, the placing of a blast in the bottom of the well for the purpose of breaking up the rock. If it be conceded that Westine was the employee of Pruno in placing the blast — a thing which in itself is very doubtful, — it conclusively appears that when that operation was completed he was thereafter performing no service for Pruno, and therefore at the time of the unfortunate accident the relation of [362] employer and employee did not exist between Pruno and Westine if it in fact had ever existed. Whatever was done in the way of removing material from the bottom of the well in no way benefited Pruno. If it be assumed that they all, including Pruno, wished to ascertain the effect of the blast, that did not create the relation of employer and employee.. Assisting Westine to go into the well after dinner was a neighborly act, performed to satisfy a very natural curiosity on the part of all concerned, Westine included. It in no way concerned Pruno as an employer. This case has no parallel in the decisions of this court as to its facts, but in principle is the same as Lange Canning Co. v. Industrial Comm. 183 Wis. 583, 197 N. W. 722. In view of the conclusion at which we have arrived upon this branch of the case, it is not necessary for us to consider other questions raised in the case. By the Court. — Judgment appealed from is reversed, and cause remanded to the circuit court with directions to enter judgment setting aside the award of the Industrial Commission; no costs to be taxed by either party, appellant to pay the clerk’s fees.