cars standing upon a switch near by his place of work. It was not the custom of the defendant to furnish shelter for its linemen in the event of sudden storms, and there was no rule of the defendant as to what the men were to do in such contingency, but each man was supposed to find shelter wherever he could. The defendant was not accustomed to make any deductions in the wages of its linemen by reason of sudden storms interfering with the work, and the defendant made no such deductions upon this occasion. Claimant and several of the other workmen stood under a tree until it no longer furnished protection, when some of the men went into a paper mill near by and, there being no more room there, and apparently no other available shelter, the claimant and two other workmen found shelter under the cars standing on a switch, and while there the cars were moved by an engine belonging to another railroad company, and the claimant was injured. In affirming an award of compensation for the injuries thus received, the court said: "That the injury was sustained by claimant during the course, that is, the period or time or extent, of employment is not seriously disputed by the defendant; but the defendant strenuously contends that the injury did not arise out of the employment. That the injuries occurred during the working hours, which were continuous; that it was customary for the defendant's linemen to cease work and obtain shelter during sudden storms, and that no deduction was made from the ordinary daily wages paid the workmen by reason thereof, is conceded. It was not only customary that the claimant should seek shelter from the storm, but doing so was not a remote, but a necessary and unquestionably frequent incident of his employment during the summer months. Had he taken shelter in the paper mill, and the roof fallen in, or the floor given way and he had been accidentally injured, he would have been entitled to the benefit of the workmen's compensation law. Whether a place in a stone crusher being operated by machinery, or under a car standing upon a switch, was the safer place, does not appear. The four linemen chose places under the cars. However, assuming that the place under the car was the more dangerous, the fact that the plaintiff's judgment led him to choose it, and that he was injured there, does not bar him from the operation of the act. Contributory negligence furnishes no grounds of defense. The act of seeking and obtaining shelter arose out of, that is, within the scope or sphere of his employment, and was a necessary adjunct and an incident to his engaging in and continuing such employment. Obtaining shelter from a violent storm in order that he might be able to resume work when the storm was over was not only necessary to the preservation of the claimant's health and perhaps his life, but was incident to the claimant's work, and was an act promoting the business of the master." W. M. G. As to liability for compensation where injured workman was intoxicated at the time of the injury, see annotation, post, 351. in (May 31, 1913.) PPEAL by defendants from a judgment of the Circuit Court for Dane County plaintiff's favor in a proceeding to re view an award of the Industrial Commission for death of one of plaintiff's employees. Reversed. The facts are stated in the opinion. Messrs. W. C. Owen, Attorney General, and Byron H. Stebbins, Assistant Attorney General, for appellants: The expression "wilful misconduct" had, prior to the enactment of the compensation act, acquired a fixed meaning in Wisconsin law. v. Chicago, St. P. M. & O. R. Co. 85 Wis. 601, 55 N. W. 771; Bolin v. Chicago, St. P. M. & O. R. Co. 108 Wis. 333, 81 Am. St. Rep. 911, 84 N. W. 446, 9 Am. Neg. Rep. 209; Gould v. Merrill R. & Lighting Co. 139 Wis. 433, 121 N. W. 161. Smith's intoxication did not constitute "wilful misconduet." Intoxication is misconduct. 17 Am. & Eng. Enc. Law, 403, 404; State v. Kraemer, 49 La. Ann. 774, 62 Am. St. Rep. 664, 22 So. 254. The misconduct was wilful. Palmer v. Chicago, St. L. & P. R. Co. 112 Ind. 250, 14 N. E. 73; Brown v. State, 137 Wis. 543, 119 N. W. 338; State v. Smith, 52 Wis. 136, 8 N. W. 870; Cincinnati, T. St. L. & N. R. Co. v. Cooper, 120 Ind. 469, 6 L.R.A. 241, 16 Am. St. Rep. 336, 22 N. E. 340, 3 Am. Neg. Cas. 251; Boyd, Workmen's Compensation, § 468; Bradley v. Salt Union, 9 W. C. C. 32, 122 L. T. Jo. 302; M'Groarty v. John Brown Co. 43 Scot. L. R. 598. Wilson v. Chippewa Valley Electric R. Co. 120 Wis. 636, 66 L.R.A. 912, 98 N. W. 536; Schneider v. Provident L. Ins. Co. 24 Wis That meaning excludes any degree of neg-28, 1 Am. Rep. 157, 7 Am. Neg. Cas. 174. ligence, and includes only wanton, intention- Mr. W. E. Wheelan, also for appellants. al acts or conduct,-those in which there Messrs. Brown, Pradt, & Genrich, for is "intent actual or constructive, to injure." respondent: Rideout v. Winnebago Traction Co. 123 Wis. 297, 69 L.R.A. 601, 101 N. W. 672, 17 Am. Neg. Rep. 400; Astin v. Chicago, M. & St. P. R. Co. 143 Wis. 477, 31 L.R.A. (N.S.) 158, 128 N. W. 265; Fox v. Chicago, St. P. M. & O. R. Co. 147 Wis. 310, 133 N. W. 19: Watermelen v. Fox River Electric R. & P. Co. 110 Wis. 153, 85 N. W. 663; McClellan v. Chippewa Valley Electric R Co. 110 Wis. 326, 85 N. W. 1018; Bolin v. Chicago, St. P. M. & O. R. Co. 108 Wis. 333, 81 Am. St. Rep. 911, 84 N. W. 446, 9 Am. Neg. Rep. 209; Decker v. McSorley, 116 Wis. 643, 93 N. W. 808, 13 Am. Neg. Rep. 631; Haverlund v. Chicago, St. P. M. & O. R. Co. 143 Wis. 415, 128 N. W. 273; Com. v. Kneeland, 20 Pick. 206; Potter v. United States, 155 U. S. 438, 39 L. ed. 214, 15 Sup. Ct. Rep. 144; Williams v. People, 26 Colo. 272, 57 Pac. 701; Huff v. Chicago, I. & I. R. Co. 24 Ind. App. 492, 79 Am. St. Rep. 274, 56 N. E. 932; State v. McAloon, 142 Wis. 72, 124 N. W. 1067; State v. Pres ton, 34 Wis. 675; Brown v. State, 137 Wis. 543, 119 N. W. 338; Krom v. Antigo Gas Co. 154 Wis. 528, 140 N. W. 41; Cohn v. Neeves, 40 Wis. 393; Schumacher v. Falter, 113 Wis. 563, 89 N. W. 485; Johnson v. Huber, 117 Wis. 58, 93 N. W. 826; Smith v. Cutler, 10 Wend. 589, 25 Am. Dec. 580; Citizens' Ins. Co. v. Marsh, 41 Pa. 386. The term "wilful misconduct" is used in the compensation act with the meaning it had previously acquired in Wisconsin law. Borgnis v. Falk Co. 147 Wis. 327, 37 L.R.A. (N.S.) 489, 133 N. W. 209, 3 N. C. C. A. 649; Schneider v. Provident L. Ins. Co. 24 Wis. 28, 1 Am. Rep. 157, 7 Am. Neg. Cas. 174: Ullman v. Chicago & N. W. R. Co. 112 Wis. 150, 56 L.R.A. 246, 88 Am. St. Rep. 949, 88 N. W. 41; Ketchum v. Chicago, St. P. M. & O. R. Co. 150 Wis. 211, 136 N. W. 634. Intoxication proximately causing an injury is not "wilful misconduct," as a matter of law. Meracle v. Down, 64 Wis. 323, 25 N. W. 412; Rhyner v. Menasha, 107 Wis. 201, 83 N. W. 303, 97 Wis. 523, 73 N. W. 41; Ward Timlin, J., delivered the opinion of the court: On January 23, 1913, the Industrial Commission made an award directing that the respondent pay to Mittie Smith the sum of $2,040 on account of the death of her husband, Pat Smith, while in the employment of respondent. March 24, 1913, in an action brought for that purpose, the circuit court for Dane county set aside this award on the ground that the Industrial Commission acted in excess of its powers in finding that the death of Pat Smith was not caused by wilful misconduct. The finding of the Commission on this point was as follows: "The death of Pat Smith was proximately caused by accident, and was not caused by wilful misconduct; that at the time of such accident Pat Smith was in an intoxicated condition which proximately caused the accident." The statute, § 2394-4, provides that "liability for the compensation hereinafter provided for, in lieu of any other liability whatsoever, shall exist against an employ er for any personal injury accidentally sus tained by his employee, and for his death, if the injury shall proximately cause death, in those cases where the following conditions of compensation concur: (3) Where the injury is proximately caused by accident, and is not so caused by wilful mis conduct." Section 2394-19: "The findings, dence we might come to a different concluof fact made by the Board acting within sion. But the statute is mandatory that its powers shall, in the absence of fraud, be the award shall not be set aside on such conclusive; the same shall be set ground. The Industrial Board has jurisdicaside only upon the following grounds: tion to decide whether or not the intoxica(1) That the Board acted without or in ex- tion which caused the death or injury was cess of its powers. (2) That the award was wilful, consequently it did not act in excess procured by fraud. (3) That the findings of its powers in deciding the negative in of fact by the Board do not support the the instant case. There is no claim that award." the award was procured by fraud, and the findings of fact support the award. Hence, without reaching the interesting questions put forward in the briefs of counsel, we reverse the judgment of the circuit court and direct that the award of the Industrial Commission be affirmed. It is quite possible for a person to be in an intoxicated condition which condition proximately caused the accident which proximately caused the death, and yet not be guilty of wilful misconduct. The drinking of intoxicating liquor is wilful in the sense of intentional, but the mere fact of drinking is not misconduct. By § 1561, Stat., any person found in any public place in such a state of intoxication as to disturb others, or unable by reason of his condition to care for his own safety or for the safety of others, is guilty of a misdemeanor. This is misconduct, and if one intentionally put himself in this condition he might be said to be guilty of wilful misconduct. But there are many cases where, although the drinking is intentional, the intoxication is not, as for instance where one by reason of fatigue, hunger, sickness, or some abnormal condition, becomes intoxicated in consequence of imbibing a quantity of liquor which ordinarily would not so affect him. While intoxication in such case to the degree specified might be a misdemeanor under the statute quoted, it is not necessarily wilful misconduct within the compensation act. The intoxication might under such circumstances be the proximate cause of an accident resulting in injury or death, and yet not have reached that degree specified in this statute, as in case where it produced mere drowsiness. Judgment reversed, and the cause remanded to the Circuit Court with directions to affirm the award of the Industrial Commission. Barnes, J., dissenting: The plain unvarnished tale in this case is that Smith, an habitual toper, left his work, went to a saloon some distance from his place of employment, got a partial "jag" on, started back with a bottle of whisky, and got so drunk that thereafter, while he was driving his team over a smooth road, he fell off the wagon and broke his neck. There is no suggestion that the whisky was injected into him by force or by stealth or artifice. He bought it himself and drank it alone. It was an offense under the law of Wisconsin for him to get so drunk that he could not provide for his own safety or the safety of others, for which he might have been punished had he survived. Of course, if the act of drinking was accidental or automatic, or a mere mechanical exercise unconsciously performed, then intent would be lacking. But there is neither finding nor evidence that such was the fact. The deceased was a seasoned veteran, having a penchant for getting drunk, who from his long experience must have known and appreciated his capacity. The Commission did not find that the deceased got drunk by accident. There was no evidence in the case to warrant any such finding. It did not award damages on any such theory. It plainly says so in its decision. After holding that the claimant was drunk at the time he fell off the wagon, and that the drunkenness caused his death, it says: "The question we have to decide is whether or not such intoxication is a defense against compensation." And in conclusion the Commission says: "If the legislature had so intended, we believe that it would have specifically so provided in the act." The court holds that if the claimant got drunk intentionally, that would be wilful misconduct within the meaning of the If we were authorized to review the evi- statute. The Commission held that it would There was evidence in the instant case that deceased was slightly intoxicated, that he drove out of the clay pit standing upon his load, that he was perfectly able to take care of himself and drive his team when last seen alive. There was, therefore, room to find upon the evidence not only with respect to the degree of intoxication, but that there was no intention or purpose to put himself in a dangerous or helpless condition of intoxication. The Industrial Commission has jurisdiction to pass on these very questions, and their finding above referred to does determine these questions. It finds that Smith was in an intoxicated condition which proximately caused the accident, but that the accident was not caused by wilful misconduct. This means that he did not wilfully bring upon himself such degree of intoxication. not be, as I read the findings and decision. It is apparent that if the Commission construed the law as does the court, it would have denied recovery. This court sustains the conclusion reached by the Commission in a curious manner. It in effect says that the Commission found that there was no wilful misconduct. Under some circumstances drunkenness would not be wilful misconduct. Ergo the Commission must have found that the exculpating circumstances existed, and its finding in this behalf is conclusive on the court. It was not found that the deceased got drunk on an unusually small allowance of liquor because of sickness, hunger, or any other reason. Such a finding would totally lack support in the evidence. Where a party accustomed to the use of liquor drinks it until he gets drunk, the presumption is that he intended to do just what he did do. It was for the claimant to show by some facts or circumstances that for some reason or other the deceased drank less liquor than was ordinarily necessary to produce stupefaction in the instant case. No such evidence was produced. I think the circuit court was clearly right in holding that there could be no recovery, and that the Commission would have reached the same conclusion had it construed the law as the circuit court did and as this court does. The judgment of the court is based on a finding of fact which the Commission did not make, to wit, that the deceased did not intend to get drunk. What the Commission in reality concluded was that intention was immaterial because an allowance might be made for an injury resulting from intentional intoxication. Marshall and Vinje, JJ., concur in the foregoing opinion of Barnes, J. Annotation-Recovery of compensation where injured workman was intoxicated at the time of the injury. As to application and effect of workmen's compensation acts generally, see annotation, ante, 23. There appears to be no American decision other than NEKOOSA-EDWARDS PAPER Co. v. INDUSTRIAL COMMISSION which passes upon the question whether or not compensation is recoverable where the injured workman was intoxicated at the time of his injury. In some early decisions under the English act it has been held that intoxication is "serious and wilful misconduct." Bur-| rell v. Avis (1898; C. C.) 106 L. T. Jo. (Eng.) 61, 1 W. C. C. 129; M'Groarty v. Brown (1906) 8 Sc. Sess. Cas. 5th series (Scot.) 809. Under the English act of 1906 "serious and wilful misconduct" does not prevent a recovery of compensation if the injury results in death or in serious permanent disablement; but, even under this act, the question still remains whether or not an injury received by a workman while he is intoxicated arises "out of and in the course of" his employment. In the following cases, under the circumstances indicated, no recovery was allowed, upon the ground that the injuries did not arise out of the employment: M'Crae v. Renfrew (1914) 2 Scot. L. T. 354, 51 Scot. L. R. 467 [1914] S. C. 539, 7 B. W. C. C. 898 (a commercial traveler went to a town, but made no attempt to transact business, and became intoxicated, and was injured at the station while awaiting the train home); Murphy v. Cooney [1914] 2 I. R. 76 [1914] W. C. & Ins. Rep. 44, 48 Ir. Law Times, 13, 7 B. W. C. C. 962 (mate on a vessel injured while in a place from which he had been ordered by the master); Horsfall v. The Jura [1913] W. C. & Ins. Rep. (Eng.) 183, 6 B. W. C. C. 213 (second mate of vessel did not obey order of captain to go to his room, but went to another part of the vessel); Frith v. The Louisiana [1912] 2 K. B. (Eng.) 155, 81 L. J. K. B. N. S. 701 [1912] W. C. Rep. 285, 5 B. W. C. C. 410, 106 L. T. N. S. 667 [1912] W. N. 98, 28 Times L. R. 331 (sailor who had been on shore on leave returned to vessel in state of hopeless intoxication); Nash v. The Rangatira [1914] 3 K. B. (Eng.) 978, 83 L. J. K. B. N. S. 1496 [1914] W. N. 291, 111 L. T. N. S. 704, 58 Sol. Jo. 705, 7 B. W. C. C. 590 (sailor returned to ship in drunken condition, and, in going up gangway from quay to the ship, let go his hold on hand rope and fell onto the quay). In O'Brien v. Star Line (1908) 45 Scot. L. R. 935, 1 B. W. C. C. 177, a seaman returned to his ship late at night, the worse for liquor, and was found the next morning lying in the bottom of a hold. There was no evidence as to how he came there, and it was held that it could not be said that he was injured by accident arising "out of and in the course of" the employment. In two recent cases, however, it has been held that where a workman has been injured by doing the precise work that he was employed to do, he may recover the ladder because of his intoxicated concompensation for such injuries, although dition); Frazer v. Riddell [1914] S. C. he was intoxicated at the time of the in- 125, 2 Scot. L. T. 377, 51 Scot. L. R. 110, jury. Williams v. Llandudno Coaching [1914] W. C. & Ins. Rep. 125, 7 B. W. C. & Carriage Co. (1915) 31 Times L. R. C. 841 (engine driver on traction engine (Eng.) 186, 84 L. J. K. B. N. S. 655 fell off foot plate and was fatally in[1915] W. C. & Ins. Rep. 91 [1915] W. jured; compensation allowed although N. 52, 59 Sol. Jo. 286 [1915] 2 K. B. 101, driver was under influence of drink, and 112 L. T. N. S. 848, 8 B. W. C. C. 143 unfit for work at the time). (stableman, required to go to a loft by means of a ladder, slipped and fell from MICHIGAN SUPREME COURT. JESSIE B. CLEM V. CHALMERS MOTOR COMPANY, Plff. in (178 Mich. 340, 144 N. W. 848.) Master and servant employers' lia- (McAlvay, Ch. J., dissents.) (January 5, 1914.) ERTIORARI to review an order of the Industrial Accident Board affirming an award of an arbitration committee allow CE ing the claim of plaintiff under the employers' liability act for injuries to her husband resulting in death. Affirmed. The facts are stated in the opinion. Messrs. Bowen, Douglas, Eaman, & Barbour, for plaintiff in certiorari: Clem did not receive a personal injury arising out of and in the course of his employment. Boyd, Workmen's Compensation, § 472; Losh v. Richard Evans & Co. 51 Week. Rep. 243, 19 Times L. R. 142; Lowe v. Pearson [1899] 1 Q. B. 261, 68 L. J. Q. B. N. S. 122, 79 L. T. N. S. 654, 47 Week. Rep. 193, 15 Times L. R. 124; Smith v. Lancashire & Y. R. Co. [1899] 1 Q. B. 141, 68 L. J. Q. As to what constitutes "serious and wilful misconduct" within the meaning of the compensation act, see annotation following this case, post, 355. W. M. G. B. N. S. 51, 47 Week. Rep. 146, 79 L. T. N. S. 633, 15 Times L. R. 64; Hendry v. United Collieries [1910] S. C. 709, 47 Scot. L. R. 635, 3 B. W. C. C. 567; Callaghan v. Maxwell, 2 Sc. Sess. Cas. 5th Series, 420, 37 Scot. L. R. 313, 7 Scot. L. T. 339; Williams v. Wigan Coal & Iron Co. 3 B. W. C. C. 65; Barnes v. Nunnery Colliery Co. [1912] A. C. 44, 81 L. J. K. B. N. S. 213, 105 L. T. N. S. 961, 28 Times L. R. 135, 56 Sol. Jo. 159, 49 Scot. L. R. 688, 5 B. W. C. C. 195; Reed v. Great Western R. Co. [1909] A. C. 31, 78 L. J. K. B. N. S. 31, 25 Times L. R. 36, 99 L. T. N. S. 781, 53 Sol. Jo. 31; Martin v. John Fullerton & Co. [1908] S. C. 1030, 45 Scot. L. R. 812; Haley v. United Collieries [1907] S. C. 214; Morrison v. Clyde Navigation [1909] S. C. 59, 46 Scot. L. R. 40; Ruegg, Employers' Liability & Workman's Compensation, 8th ed. p. 340. Clem was injured by reason of his intentional and wilful misconduct. Low v. General Steam Fishing Co. [1909] S. C. 63, 46 Scot. L. R. 55; Roberts v. People, 19 Mich. 401; 40 Cyc. 938; Benfield v. Vacuum Oil Co. 75 Hun, 209, 27 N. Y. 499, 38 N. Y. Supp. 1089; Baldwin, PerSupp. 16: De Young v. Irving, 5 App. Div. sonal Injury, 2d ed. § 358; Morgan v. Hudson River Ore & Iron Co. 133 N. Y. 666, 31 N. E. 234; Seccombe v. Detroit Electric T. N. S. 750, 23 Times L. R. 471, 8 Ann. Messrs. Shields & Shields, for defendant in certiorari: Clem was not injured by reason of his intentional and wilful misconduct. Com. v. Perrier, 3 Phila. 229; Decker v. McSorley, 116 Wis. 643, 93 N. W. 808, 13 Am. Neg. Rep. 631; Lawlor v. People, 74 Ill. 228. |