Casper Cone Co. v. Industrial Commission

161 N.W. 784, 165 Wis. 255, 1917 Wisc. LEXIS 78

• Court: Wisconsin Supreme Court
• Decided: March 13, 1917
• Status: Published

Opinion

Marshall, J.

The question presented for decision is, Did the circuit court decide rightly in holding that the injury to the claimant, Martinete, was proximately caused by accident within the meaning of sub. (3), sec. 2394 — 3, Stats. ?

As indicated in the statement, Martinete did not suffer from any disability because of merely having a congenital hernial sac. The accident caused the hernia and consequent disability. That a hernia caused by accident to an employee when he is performing service, growing out of and incidental to his employment, is a compensable injury under the Workmen’s Compensation Act, is fully covered by the logic of Bystrom Brothers v. Jacobson, 162 Wis. 180, 155 N. W. 919. The court there quoted with approval from Fenton v. Thorley, 89 L. T. Rep. 314, this: “If a man, in lifting a weight, or trying to move something not easily moved, were to strain > a muscle, or rick his back, or rupture himself, the mishap, in ordinary parlance, would be described as accidental;” and concluded the discussion by saying: “accident” when used in workmen’s compensation laws “should be taken in the broad sense above indicated, — as including a violent straining of the muscles, resulting in a rupture or other bodily hurt to an employee from over-physical exertion in performing his work.” Many cases were there referred to, holding that an accidental straining of a muscle causing the development of a hernia is a compensable accidental injury under compensation laws similar to ours, and it is considered that; such is the settled law. Indeed, it may well he said to rest on principle without referring to precedents. Robbins v. Original G. E. Co. (Mich.) 157 N. W. 437, upon which the court below largely relied, is about as near like this case as any two cases arising out of different circumstances could well be.

Counsel for appellants contend that because of Martinek having been, at the time of the accident, predisposed to the development of a hernia by any undue straining of his muscles in the region where the protrusion occurred, the result of his mishap is precluded from being a compensable injury.

But for the mishap there would not have been any disability, caused at the particular time, and such a disability might never have occurred. In the Robbins Case the Michigan court, as claimed by respondents’ counsel, in dealing with a similar situation, said:

“It is assumed that it was the first time the sac had been forced through the abdominal wall. If it is also assumed that there was a certain lack of physical integrity in the parts where the injury was manifested, still I think claimant may have compensation for the injury he suffered.”

The decision of this court in Milwaukee v. Industrial Comm. 160 Wis. 238, 151 N. W. 247, is sufficient to settle the question in favor of respondents of whether predisposition to such a result as happened from the particular mishap necessarily militates against the hernia being the proximate result of accident within ,the meaning of the Workmen’s Compensation Law. To the same effect are Crouse v. C. & N. W. R. Co. 104 Wis. 473, 483, 80 N. W. 752; Boyd, Workmen’s Compensation, §'463; Dawbarn, Employers’ Liability (4-th ed.) 107, and many other authorities that might he referred to.

To go on at considerable length and review the many authorities at hand might be interesting, hut enough has been said to show that the conclusion reached is too well grounded to fairly admit of its soundness being efficiently questioned. An extended treatment of the matter can do no good here, or hereafter. It seems best to rest the case by a declaration that, if there is a definite mishap to an employee, happening to him while performing service growing out of and incidental to his employment, proximately causing him physical injury and damaging results, the misfortune is compensable under the Workmen’s Compensation Law, though he was physically unsound at the time of such mishap and otherwise such results would not have been caused by such mishap. It is considered that the decision complained of is right and should be affirmed.

By the Court. — The judgment is affirmed.