Krause v. Arnold, 165 Wis. 158.

KRAUSE, Respondent, vs. ARNOLD, Administrator, Appellant. January 19-February 13, 1917.

Bills and notes: Certificate of deposit: Ownership: Evidence.

A finding by the trial court to the effect that a certificate of deposit had been indorsed by the depositor (since deceased) and turned over to plaintiff as compensation for her services, is held not to be contrary to a clear preponderance of the evidence.

APPEAL from a judgment of the circuit court for Eau Claire county: JAMES WICKHAM, Circuit Judge. Affirmed. Action to recover on a certificate of deposit for $1,500, issued to W. F. Bailey by the Lumbermen's National Bank of Chippewa Falls, Wisconsin.

Mr. Bailey died before the action was commenced and defendant, Arnold, was duly appointed administrator of his estate and was interpleaded as a defendant. The money was paid into court and the issue as to whether plaintiff or the administrator was entitled thereto was litigated between them, resulting in findings that plaintiff was the owner of the certificate and entitled to recover. Judgment was entered accordingly and the administrator appealed.

Fred Arnold of Eau Claire, for the appellant.

For the respondent there was a brief by Sturdevant & Farr of Eau Claire, and oral argument by L. M. Sturdevant.

MARSHALL, J. The sole question in this case was one of fact. That was whether Mr. Bailey indorsed and turned the certificate of deposit over to plaintiff for services. There was evidence to the effect that she was his confidential clerk for some sixteen years, and as such largely had charge of his papers, assisted him in much literary work as a typewriter and stenographer, and otherwise, and did much to take care of him in sickness, which services, in the whole, were not performed gratuitously and were reasonably worth $700 per year. There was further evidence to the effect that the sig

Great Northern R. Co. v. King, 165 Wis. 159.

nature on the back of the certificate was that of Mr. Bailey; that he indorsed his name thereon several months before his death and delivered it to plaintiff on services; that shortly before his death he declared that he indorsed the certificate and that it was her property. There was no direct evidence to the contrary of this and no conclusive controverting circumstances. It is not thought best to refer to the evidence in detail. It has been carefully examined resulting in a conviction that no sound basis can be found in the record for holding that the circuit judge's conclusions are contrary to the clear preponderance of the evidence. The judgment must therefore be affirmed.

By the Court.-Judgment is affirmed.

GREAT NORTHERN RAILWAY COMPANY, Appellant, vs. KING and another, Respondents.

SAME, Respondent, vs. KING, Appellant, and another, Re

spondent.

January 19-February 13, 1917.

Workmen's compensation: Election not to accept law: Time for filing: Extension: Withdrawal from operation of the act: When employee engaged in interstate commerce: Award conclusive upon party not bringing action to review it.

1. The legislature having, in sub. 2, sec. 2394-5, Stats., fixed the time before which notice of an election by an employer not to accept the provisions of the Workmen's Compensation Act must be filed, the courts are powerless to extend the time.

2. A notice of such an election which was dated August 30th, mailed September 2d, and received by the industrial commission September 3, 1913, was not filed prior to September 1, 1913, within the meaning of sub. 2, sec. 2394-5, Stats., and hence was not effective.

3. Such ineffective notice of election cannot be construed as a withdrawal under the provision of said section which allows an employer to withdraw himself from the operation of the law at the end of the year.

Great Northern R. Co. v. King, 165 Wis. 159.

4. To establish that a railway employee was, at the time of injury, "employed in interstate commerce," it must appear that he was at that time engaged in interstate transportation or in work 20 closely related to it as to be practically a part of it.

5. Where a railway company transacted both interstate and intrastate business, although the latter was trifling in amount, a janitor in its general office in this state who was injured while breaking up coal for the furnace was not at the time engaged in interstate commerce.

6. So far as an award by the industrial commission under the Workmen's Compensation Act is against the contentions of either party it is conclusive and final unless that party brings his action to review it in that respect.

APPEALS from a judgment of the circuit court for Dane county: E. RAY STEVENS, Circuit Judge. Affirmed.

The defendant King was awarded the sum of $562.20 by the Industrial Commission for a serious injury to his right eye by an accident occurring while employed by the plaintiff as janitor in its general office at Superior, Wisconsin. While he was breaking up coal for the furnace with an axe, a small splinter flew off and struck him in the eye. He claimed double the compensation actually awarded to him because (as the Commission found) there was practically a total loss of vision of the eye, but the Commission awarded him compensation on the basis of fifty per cent. diminished vision because of the admitted fact that the eye prior to the accident had only one half of ordinary vision owing to congenital causes. The plaintiff brought this action to set aside the award, and after trial judgment was entered confirming the award, from which judgment the railway company appeals. King brought no action to increase the award, but has appealed from the judgment in this action, and contends that the circuit court should have awarded him compensation for total loss of vision of the eye and that such relief may be given him in the present action.

The cause was submitted for the plaintiff on the brief of J. A. Murphy of Superior; for the defendant King on that of Hanitch & Hartley of Superior; and for the defendant

Great Northern R. Co. v. King, 165 Wis. 159.

Industrial Commission of Wisconsin on that of the Attorney General and Winfield W. Gilman, assistant attorney general.

WINSLOW, C. J. The appellant railway company claims a reversal (1) because it was not under the Workmen's Compensation Law at the time of the injury, and (2) because the claimant was engaged in interstate commerce at the time and hence the Compensation Law does not apply under the terms of sub. (3), sec. 2394-8, Stats. These contentions will be briefly considered.

1. The Workmen's Compensation Law at the time of the accident provided in substance that on and after September 1, 1913, every employer of four or more employees should be deemed to have elected to accept the law unless prior to that date he had filed a notice of his election not to accept the law.

The claim is made in the present case that such a notice was filed, but the evidence is undisputed to the effect that the only notice filed was a notice dated August 30th, mailed at Superior September 2d, and received by the Commission September 3, 1913. By no stretch of the imagination can this be called a notice filed "prior" to September 1st. utes allowing amendment in court proceedings have not the remotest application. The legislature has definitely fixed the time when the act in question must be done and the court is powerless to extend it.

Stat

It is argued that if the notice was not effective as an election it should be construed as a withdrawal under the provisions of the Compensation Law which allow an employer to withdraw himself from the operation of the law at the end of the year. The notice says simply that the railway company "elects not to accept the provisions" of the law. Non constat that it wished to withdraw when it ascertained that its notice of nonacceptance was filed too late. To construe it as a withdrawal would be doing violence to plain language. It says no such thing.

2. Many cases, state and federal, are cited to us upon the

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Great Northern R. Co. v. King, 165 Wis. 159.

question whether King was engaged in interstate commerce at the time of the accident. To review them would be of no use and would but add confusion to a subject already sufficiently confused. The supreme court of the United States is, of course, the final authority on the subject, and the two most recent cases on the subject which are cited to us are Shanks v. D., L. & W. R. Co. 239 U. S. 556, 36 Sup. Ct. 188, and Chicago, B. & Q. R. Co. v. Harrington, 241 U. S. 177, 36 Sup. Ct. 117.

In the first case named the injured employee was injured while altering the location of an overhead counter-shaft in the repair shop of the company where locomotives of the company engaged in both interstate and intrastate transportation. were repaired. In the second case named the employee was injured in removing coal from storage tracks to coal chutes where it was to be put into locomotives for use in hauling interstate trains.

In both cases the court said that the employee at the time of the injury must be "employed in interstate commerce" and that the true test of such employment is, "Was the employee at the time' of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it?" In each case it was held that the employee was not so engaged. Applying the test laid down in those cases to the present case it seems quite certain to us that King does not answer its calls. It is true that the business of the Great Northern Railway Company is almost entirely interstate business and that its state business is absolutely trifling in comparison, nevertheless it transacts both interstate and intrastate business; and where this is the case we see no logical line that can be drawn based on the relative amount of the intrastate business which is done.

We are well satisfied that King's appeal is ineffective, even if we were of opinion that the Commission and the trial court erred in not awarding compensation on the basis of a