Belle City Malleable Iron Co. v. Rowland , 170 Wis. 293 ( 1919 )

Esci-iweiler, J.

The appellants contend on this appeal, first, that Hansen was not within the course of his employment in entering the burning building where he met his death; second, that the applicant, Marie J. Hansen, was not living with her husband at the time of his death within the provisions of sub. 3 (a), sec. 2394 — 10, Stats.; and lastly, that she was not a dependent upon him within the meaning of the same statute.

We are satisfied that the evidence supports the conclusion of the Commission that at the time of his death Louis Hansen was performing service growing out of and incidental to his employment within the meaning of sub. (2), sec. 2394 — 3, Stats. He must have entered the building voluntarily and knowing the possibility of danger in so doing from its being then on fire. But it is a reasonable inference that he did so for either one or both of these purposes: (1) under the specific duty devolving upon him to have charge of and look after the valuable patterns essential for the work being done by his employer; (2) from the sense of obligation to use a reasonable amount of care to save his employer’s property at a time of such emergency. As to each of these it needed no specific instructions from any su-, perior to perform such services or voluntarily assume such responsibility while making an effort within the field of reasonable care to save the property of his employer. While so doing he cannot be considered, as a matter of law, to be a stranger. McPhee’s Case, 222 Mass. 1, 4, 109 N. E. 633; Munn v. Industrial Board, 274 Ill. 70, 113 N. E. 110.

We do not think that either the letter or the spirit of the workmen’s compensation act requires that such employee should be penalized for obeying such a natural and commendable instinct on his part.

On the third point urged by appellants, we hold that under the testimony of Mrs. Hansen to the effect that she was living with her son only temporarily rather than with her husband and by reason of an agreement between the deceased and herself on account of her ill health, and that the work required in the apartment furnished by the son was much less of a strain upon her than at the homestead, and that she expected to return to her husband, all furnish ample warrant for the finding that she was living with her husband at the time of his death. Northwestern Iron Co. v. Industrial Comm. 154 Wis. 97, 101, 142 N. W. 271.

Having properly held that she was living with her husband at the time of his death, then sub. 3 (a), sec. 2394 — 10, Stats., establishes a conclusive presumption that she -yvas solely and wholly dependent upon him for support. That she had property of her own, even were the income therefrom sufficient and for a time actually had been alone used for her support, would be entirely immaterial.

By the Court. — Judgment affirmed.