April 7, 1961 —
May 2, 1961.
APPEAL from a judgment of the circuit court for Dane county: NORRIS E. MALONEY, Circuit Judge. Affirmed.
For the appellants there was a brief and oral argument by John A. Moore of Oshkosh.
For the respondent Industrial Commission the cause was argued by Mortimer Levitan, assistant attorney general, with whom on the brief was John W. Reynolds, attorney general, joined in by Thompson Thompson of Oshkosh, for Dolores Schroeder, and oral argument by Andrew C. Thompson.
Action instituted by the plaintiff M.W. Martin, Inc., and Western Casualty Surety Company, its workmen's compensation insurance carrier, against the defendants Industrial Commission (hereinafter referred to as the "commission") and Dolores Schroeder to review an order of the commission adjudging workmen's compensation death benefits in favor of the last-named defendant, Dolores Schroeder, as the widow of Howard Schroeder, a deceased employee of M.W. Martin. Inc.
One Martin had for several years operated a house-moving and excavating business as an individual, but shortly before April 28, 1958, he had incorporated his business under the corporate name of "M. W. Martin, Inc." Such corporation had undertaken the task of uncovering sewer and water mains in an unpaved public street running in a northerly and southerly direction in the city of Oshkosh and excavating a trench westward from such mains so that sewer and water connections could be provided to two houses, one lying directly west of the other. Howard Schroeder was killed on April 28, 1958, as a result of soil caving in upon him while he was in an excavation being dug by a piece of excavating machinery known as a "back hoe" in carrying out such project. At the time of the fatal accident one Andre was the foreman and operator of the back hoe and Schroeder was his helper.
About 8 o'clock on the morning of the accident, Martin had accompanied Andre and Schroeder to the place where the trench was to be dug in uncovering the sewer main, and he had marked out the location of the same with pegs driven into the ground. The first part of the task to be done was to excavate down to the sewer main in the center of the street and then extend the trench westward at least 15 feet so that one Schmude, a plumber, could tap the main and lay the beginning of the sewer lateral to be installed. Such sewer main was located at a depth of approximately 11 feet below the surface of the street. Later another connecting trench was to be dug to uncover the water main, but no work on this had commenced prior to the accident.
The back hoe was attached to the rear of a tractor which provided the operating power. The actual excavating was done by a bucket-like shovel which was pulled toward the tractor and then raised so as to deposit the excavated soil along one side of the trench. This device excavated a trench two feet in width. In operating the back hoe, Andre had his back to the tractor and the direction in which the trench was being dug, and faced the power-operated shovel. Schroeder's job was to see that the tractor was guided parallel to the peg markings made by Martin, and from time to time to insert a measuring stick into the excavation so that Andre would know the depth. He was also provided with a hand shovel to use in removing stones out of the trench which the back hoe had not gotten out and in cleaning off the main where the plumber was to make the tap.
Martin testified as follows at the hearing held on the application of Dolores Schroeder for workmen's compensation death benefits: After making out the line to be excavated he left and returned about 8:30 to 8:45 a.m. By that time the trench was about nine feet long and four and a half to five feet deep. He then observed that the dirt being excavated had considerable sand in it and was "the peeling or caring type of dirt." Martin then told Schroeder, "Howard, this is cave-in type dirt. Don't go in the trench." Martin also had Andre shut off the machine and instructed Andre that he wanted the excavating to be done by "the machine only." He then left to go to another job and was notified of the accident around 10 a.m.
Andre's testimony was as follows: Twice before the accident Schroeder had gotten into the trench to dig out stones by hand. The first time the bottom of the excavation was only about waist depth and Schroeder had gotten into the trench by himself. The second time Andre lowered Schroeder into the trench by means of the power shovel although the trench was then not much deeper than before. When the trench was about six or seven feet deep, dirt commenced falling from the sides into the excavation. His explanation for this was that there was muck below which gave way. Andre had to use the power shovel to remove such fallen soil. About five or ten minutes before the accident, Andre gave Schroeder a signal by the shake of the head that Schroeder was not to go into the excavation, which method of signaling had been agreed upon between them. At the time the accident occurred, Andre had not seen Schroeder enter the trench which then had a depth of 10 or 11 feet. The reason Andre had not seen this was because he had the brim of his hat pulled down over his eyes and was watching the bucket shovel. Andre merely caught a glimpse of Schroeder down in the trench and at the same time the soil on the north side, where the excavated soil was piled, was caving in upon Schroeder. Andre attempted to move the power shovel so as to hold back the failing dirt, but was too late in such endeavor.
On May 10, 1958, shortly after the accident, Andre had given a statement to the insurance carrier, in which Andre declared, "Mr. Martin has specifically warned us about going down and I know that Schroeder heard that as it was told to both of us at the same time. Mr. Martin then left and we continued on the work." However, at the hearing held November 14, 1958, at which time Andre was no longer in the employ of M.W. Martin, Inc., Andre testified he could not remember whether Martin had issued such an instruction or not.
Schmude, the plumber, testified that he came to the job sometime between 8:30 and 9 a.m. on the morning of the accident and told Schroeder, "I wouldn't go down in until they got some shoring in." This warning was given because Schmude observed that soil was giving way at the bottom of the excavation which was then six or seven feet deep.
The commission awarded full death benefits, together with a burial allowance, to the widow, Dolores Schroeder. The plaintiff employer and insurance carrier timely instituted the within action for review in the circuit court. That court remanded the proceeding back to the commission because of inadequate findings of fact. The commission, without taking further testimony, then made new findings of fact, the material portions of which are as follows:
"That the fatal accident of April 28, 1958, took place while Howard Schroeder was in the trench, at which time there was a cave-in, causing his death; that no one saw him enter the trench immediately before the time of injury; that the shovel was in front of him following the cave-in; that the employer did not issue [an] order prohibiting the deceased from going into the ditch; that it cannot be determined from the record herein whether the deceased entered the ditch intentionally or accidentally; that in either event he was in the course of his employment and his injury arose out of such employment.
"The commission concludes that the deceased suffered fatal injury April 28, 1958, while performing service in the course of his employment, and that his injury arose out of such employment; that the injury was not caused by wilful failure of the deceased to use a safety device or by wilful failure to obey a reasonable rule of the employer within the meaning of sec. 102.58; that the applicant is entitled to full death benefit without any decrease."
The record, including such new findings of fact, was returned to the circuit court. By judgment entered November 16, 1960, the circuit court confirmed the order of the commission. From such judgment the plaintiff M. W. Martin, Inc., has appealed.
It is the position of counsel for the appellant employer that there is no support in the evidence for the commission's finding of fact that the employer had not issued an order to the deceased employee prohibiting him from going down into the excavated ditch. Based upon the premise that such an order had been issued on the morning of the accident, counsel advances these two contentions:
(1) The violation of such order by the deceased in going down into the trench caused him to be without the course of his employment at the time the fatal accident occurred.
(2) In any event, such violation constituted a wilful failure to obey a reasonable rule of the employer which, under the provisions of sec. 102.58, Stats., would require a 15 per cent reduction in the benefits awarded.
We find it unnecessary to determine whether the commission's finding of fact, that no order had been issued by the employer to the employee prohibiting him from entering the excavated ditch, is unsupported by the evidence, and whether this court must accept as a verity the uncontradicted testimony that such an order had been given. Without deciding such point, we will assume for the purpose of determining the other two issues raised that such an order had been given.
The plaintiff's brief cites Fournier v. Androscoggin Mills (1921), 120 Me. 236, 113 A. 270, 23 A.L.R. 1156, and Hibberd v. Hughey (1923), 110 Neb. 744, 194 N.W. 859, as holding that an employee, who engages in an activity in disobedience of an order of his employer, thereby removes himself from the course of his employment so as to bar him from workmen's compensation benefits if he is injured while so engaged. However, our statute, sec. 102.03 (1)(c), does not require that an injury, in order to be compensable, be "within the scope of employment," but only that at the time thereof the employee be performing service " growing out of and incidental to his employment." Butler v. Industrial Comm. (1953), 265 Wis. 380, 386, 61 N.W.2d 490. Furthermore, we deem that past decisions of this court have pretty well differentiated the type of situation in which disobedience of an employer's order will not bar such employee, or his beneficiary, from workmen's compensation benefits from the one in which such disobedience is held to bar recovery of such benefits. Therefore, it is unnecessary to draw upon the decisions of other jurisdictions for assistance in resolving the instant appeal.
In Frint Motor Car Co. v. Industrial Comm. (1919), 168 Wis. 436, 170 N.W. 285, a mechanic was given charge of his employer's pit at automobile races. He was to work on his employer's cars there and not leave the pit. Contrary to orders he left the pit and stood upon the fence at the inside of the race track. While there, during a race, he saw one of his employer's cars stop on the track a short distance away. He ran toward it, apparently to render assistance. However, before reaching it he was struck by another racing car and killed. It was therein held that the fact, that he was on the track in disobedience of his employer's orders, did not prevent its being determined that at the time of the accident he was performing service growing out of and incidental to his employment.
The case of Radtke Bros. Korsch Co. v. Rutzinski (1921), 174 Wis. 212, 183 N.W. 168 involved injury to a fourteen-year-old boy employed by a printing and bookbinding establishment. His duties did not require that he operate any of the machines in the plant, and he was instructed by the employer to keep away from all machines. Contrary to such instructions, he operated a machine for cutting pasteboard in order to cut off the edges of a tablet he had made for his personal use at his own home. In so doing he cut off the ends of two fingers. This court reversed an award of workmen's compensation benefits, and held that at the time of injury the boy was not performing services growing out of and incidental to his employment. The rationale of the decision was that an employee may not recover workmen's compensation benefits for an injury received while doing work entirely different from that assigned to him, against orders, and for his own personal benefit and not that of the employer.
Another workmen's compensation case involving a disobedience of instructions by the employee is Kosteczko v. Industrial Comm. (1953), 265 Wis. 29, 60 N.W.2d 355. The employee was placed in charge of an amusement ride at the state fair and was instructed not to leave the same except when relieved by another employee. Contrary to such orders, he left the ride unattended in order to ride on another device known as the "Whip" for his own enjoyment. He was thrown therefrom and killed. It was determined that, because of his disobedience of orders and his riding on the other amusement device for his own personal benefit, his mother was not entitled to workmen's compensation death benefits, citing Radtke Bros. Korsch Co. v. Rutzinski, supra.
In Butler v. Industrial Comm., supra, a village marshal at the time of his hiring was instructed to confine his official activities to the limits of the village. An automobile accident occurred outside of the village limits. The marshal was on duty at the time, went to the scene of the accident, and was killed as the result of being struck by a passing car. Recovery of workmen's compensation death benefits was permitted in spite of the marshal's disobedience of his instructions. The court's opinion cited both the Frint Motor Car Case and the Kosteczko Case and distinguished each from the other. The differentiation made was that in the first-mentioned case the employee at the time of fatal injury was attempting to perform an act he considered to be for the benefit of his employer, while in the latter case the employee was on a "frolic of his own.
This court also gave recognition to such differentiation in Sheboygan Airways v. Industrial Comm. (1932), 209 Wis. 352, 245 N.W. 178. The opinion therein stated that in Radtke Bros. Korsch Co. v. Rutzinski, supra, a rule was laid down that a workmen's compensation claimant cannot recover where he performs forbidden acts outside the range of his service. Then, in commenting on such rule, this court declared (p. 359):
"Of course, that rule is not applicable when an employee, in furtherance of his employer's interests and not merely to further his own personal ends, commits some acts of disobedience as in Frint Motor Car Co. v. Industrial Comm. 168 Wis. 436, 170 N.W. 285."
If it be assumed that Schroeder, the employee in the instant case, had entered the ditch in disobedience of the order of his employer, there can be no doubt that he did so for the purpose of assisting the work of the employer and not for any personal benefit to himself. Therefore, the result is ruled by the Frint Motor Car and Butler Cases and not those Radtke Bros. Korsch Co. v. Rutzinski, supra, and Kosteczko v. Industrial Comm., supra.
Counsel for the appellant call to our attention a statement appearing in the court's opinion in Anderson v. Industrial Comm. (1947), 250 Wis. 330, 333, 27 N.W.2d 499, to the effect that the activities of the employee in that case at time of injury were carried on "for the purpose of advancing the employer's interests and did not violate any instruction to the contrary." A similar statement occurs in Nelson Motors v. Industrial Comm. (1958), 2 Wis.2d 614, 618, 87 N.W.2d 241. Neither the Anderson Case nor the Nelson Motors Case involved a disobedience of instructions by an employee. The reference therein to there having been no violation of an order of the employer was superfluous. It was also unfortunate in light of our holdings in the Frint Motor Car and Butler Cases.
We now turn to the last issue raised by the appellant employer, viz., that the employee Schroeder's disobedience of the employer's order not to enter the ditch requires that the award of benefits be reduced by 15 per cent pursuant to sec. 102.58, Stats. However, there would be no wilful disobedience of such order if Schroeder had accidentally fallen into the ditch instead of entering the same voluntarily. The burden of proof, to establish a wilful violation of a safety rule by the employee so as to require imposition of the 15 per cent reduction in benefits, is on the employer. The commission made a specific finding of fact "that it cannot be determined from the record herein whether the deceased entered the ditch intentionally or accidentally." Strictly this is not a finding of fact but a statement of its inability on the state of the evidence to make one on the issue of whether Schroeder had voluntarily entered the ditch.
The following evidence tends to support an inference that Schroeder's entrance into the ditch at the time of the cave-in was involuntary: The depth of the ditch at the time of the accident was from 10 to 11 feet. Andre testified that with a ditch of that depth and usual practice followed was to lower the employee down with the power shovel, unless the plumber was present with a ladder. In such latter event the ladder would be used by the employee to go down into the ditch. At the time of the accident, the plumber was not there and there is no evidence of any ladder being present. It is highly significant that Schroeder had been lowered into the ditch by means of the power shovel at the time he dug out the second stone, although the ditch then was not nearly as deep as it was at the time of the cave-in. Furthermore, about five or ten minutes before such cave-in, Schroeder had come over to the power shovel in order to be lowered into the ditch and Andre had signaled him with a shake of his head not to go into the excavation.
The only evidence, which might tend to support an inference that Schroeder voluntarily descended into the ditch at the time of the fatal accident, is that the hand shovel he had previously used was found afterward in close proximity to, and in front of, his body, under the soil which had cared in on top of him. We deem this evidence to be wholly insufficient to compel the commission to find that Schroeder's entrance into the ditch had been intentional. This is especially so in view of the possibility that, if Schroeder fell into the ditch, he may have had the shovel in his hand at the time.
We treat the commission's finding "that it cannot be determined from the record herein whether the deceased entered the ditch intentionally or accidentally" as the equivalent of a determination that the employer has failed to meet its burden of proof that there had been an intentional and wilful violation by Schroeder of a reasonable safety rule. On such basis we affirm such determination.
By the Court. — Judgment affirmed.