Yellow Cab Co. v. Industrial Commission

246 N.W. 689, 210 Wis. 460, 1933 Wisc. LEXIS 380
CourtWisconsin Supreme Court
DecidedFebruary 7, 1933
StatusPublished
Cited by13 cases

This text of 246 N.W. 689 (Yellow Cab Co. v. Industrial Commission) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yellow Cab Co. v. Industrial Commission, 246 N.W. 689, 210 Wis. 460, 1933 Wisc. LEXIS 380 (Wis. 1933).

Opinion

Fritz, J.

The only question is whether Hatfield, who was regularly employed by the plaintiff, Yellow Cab Company, from 6 p.m. to S :30 a.m. to attend to its office telephone switch board, and also to load and start taxicabs at the railroad station upon the arrival of certain trains, is entitled to compensation while ill with pneumonia, which he claims he contracted as the result of exposure on February 6, 1931, while engaged in outdoor work at a time when the temperature ranged from 24° to 29° Fahrenheit above zero, and there was a moderate snowfall. Hatfield felt well when he reported for work at 5 :40 p.m. At 8 :30 p.m. he was directed to attend to the. unloading, loading, and starting of cabs at the Memorial Union building of the State University at a social function, which continued from 8:45 p.m. to 2 :30 a.m. He wore winter apparel, but had forgotten his overshoes. En route to the Memorial Union building, he spent twelve to fifteen minutes in changing a tire, during which time he had to kneel in the snow; and at the building he worked outdoors on a concrete platform. He was very busy opening doors and moving around. At the end of half an hour he began to feel chilly all over his [462]*462body, and his. legs and feet. Those conditions became so much worse that at 10 :30 he went home, took off his stockings and shoes, sat near the coal stove, and took some tea, feeling ill and cold; but after twenty minutes he replaced his stockings and shoes, put on overshoes, and returned to his employer’s office for work. At 11:15 p.m. he was again sent to work on the outside platform at the Memorial Union building, and continued there until 2 :30 a.m. with the exception of half an hour, which he was directed to spend in the building soliciting trade. While doing that he kept on his overcoat but could not get warm. At 2 :30 a.m. he returned to his employer’s office and at 5 :30 a.m. he went home and to bed. During all that time he could not warm up, and he felt his head and chest filling up and becoming sore. Those conditions grew worse, and when a physician was called on the evening of February 9, 1931, he found an abnormal temperature and symptoms of pneumonia. On the following day he sent Hatfield to the hospital because lobar pneumonia was developing. That disease ran its usual course, excepting that on February 19, 1931, Hatfield suffered a thrombosis from the pneumonia in the leg, which interfered with circulation to the extent that a toe became gangrenous and had to be disarticulated at the proximal joint. Expert medical testimony received at the hearing before the commission fully warranted the statement in its memorandum decision that although pneumonia germs are prevalent in the throats and noses of many normal persons, pneumonia does not result unless the germs invade the lungs and germinate there, which occurs from a lowering of the resistance by some cause; that such “lowered resistance may be due, among other things, to exposure, alcoholism, and reduced vitality following an operation;” “that the exposure on the evening in question, following a probable heating of the body while changing the tire, was [463]*463the most logical cause of the lowering of the resistance causing the development of the pneumonia;” and also the commission’s conclusion that “on the whole record, and considering the time element involved, the pneumonia was caused by the exposure lowering the resistance so that the germs germinated and invaded the lungs.” In its formal findings of fact the commission held that “while performing service growing out of and incidental to his employment, applicant contracted pneumonia, resulting in his disability;” and that the employer was liable for compensation under the workmen’s compensation act.

A review of the record discloses that in addition to the facts stated in the commission’s decision, as briefly indicated above, there was undisputed medical testimony that the incubation period of pneumonia germs is two or three days after the exposure. The attending physician was of the opinion that in this case the exposure occurred by chilling during the night of February 6th, and he found no other cause in the case for the lowering of the resistance and the pneumonia which resulted. Even the physician called by the employer admitted the possibility of that exposure as such cause, but he thought that the symptoms indicated that the disease began before that exposure. The evidence sufficiently sustains the findings and conclusions of the commission; and the entire record warrants the conclusion that Hatfield sustained an “accidental injury . . . growing out of and incidental to the employment.” It was a “personal injury accidentally sustained” within the meaning and contemplation of those words as used in sec. 102.03, Stats. 1929, of the workmen’s compensation act, because his exposure, while Hatfield was performing services required of him by his employer, was unexpected, unintentional, and without design. As this court said in Vennen v. New Dells L. Co. 161 Wis. 370, 374. 154 N. W. 640. and has con[464]*464sistently held ever since, in relation to those words in that section (which was then numbered 2394 — 3) :

“The term ‘accidental,’ as used in compensation laws, denotes something unusual, unexpected, and undesigned. The nature of it implies that there was an external act or occurrence which caused the personal injury or death of the employee. It contemplates an event not within one’s foresight and expectation, resulting in a mishap causing injury to the employee. Such air occurrence may be due to purely accidental causes or it may be due to oversight and negligence.”

In special reference to the disease of typhoid fever, which had been contracted by Vennen while he was employed in a lumber camp, and which had resulted in his death, because of which his employer was held liable for compensation, this court said in the Vennen Case:

“The fact that deceased became afflicted with typhoid ■fever while in defendant’s service would not, in the sense of the statute, constitute a charge that he sustained an accidental injury, but the allegations go further and state that this typhoid affliction is attributable to the undesigned and unexpected occurrence of the presence of bacteria in the drinking water furnished him by the defendant as an incident to his employment. These facts and circumstances clearly charge that Vennen’s sickness was the result of an unintended and unexpected mishap incident to his employment. These allegations fulfil the requirements of the statute that the drinking of the polluted water by the deceased was an accidental occurrence while he was ‘performing service growing out of and incidental to his employment.’ . . . Diseases caused by accident to employees . . . áre injuries within the contemplation of the workmen’s compensation act.”

During the course of that opinion, Alloa C. Co. v. Drylie, [1913] 1 Scots L. T. 167, 4 N. & C. C. A. 899, involving an exposure, which caused pneumonia, is mentioned in this manner:

“Drylie, a workman in a coal pit, through accident was exposed to icy cold water up to his knees and became chilled, [465]*465which made him sick, resulting in pneumonia of which he died. Upon the evidence adduced the court found that the pneumonia was caused by the chill and that death resulted from ‘injury by accident.’ ”

Subsequently, in Bystrom Brothers v. Jacobson, 162 Wis. 180, 155 N. W.

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Bluebook (online)
246 N.W. 689, 210 Wis. 460, 1933 Wisc. LEXIS 380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yellow-cab-co-v-industrial-commission-wis-1933.