#### Heileman Brewing Company, Appellant, vs. Shaw and another, Respondents.

*October 8*

October *26, 1915.*

*"Worhmen’s compensation: Accidental injury while performing service growing out of and incidental to employment: Evidence: Sufficiency.*

Where a night workman, whose duties took him to all parts of the bottling house of a brewery, was found between 8 and 9 o’clock p. m. lying, unconscious and with bruises on his head and shoulder, on the basement floor beneath a guarded temporary opening in the floor above, and died on the following morning, findings by the industrial commission that his death was caused by an accidental injury sustained while he was “performing services growing out of and incidental to his employment,” were not wholly unsupported by the evidence, although there was no di-. rect evidence showing what he was doing at the time.

Appeal from a judgment of the circuit court for Dane county: E. Eay SteveNS, Circuit Judge.

*Affirmed.*

This is an action to set aside an award of the *Industrial Commission*requiring the appellant company to pay to *Huida, Shaw*$3,000 on account of the death of her husband, James Shaw, caused by accident while in the employ of the appellant company. The circuit court affirmed the award and the plaintiff company appeals.

The decedent had been employed as night workman by the plaintiff company. His duties consisted mainly of cleaning up after the day force had left and turning on the steam in the pasteurizing machines, and his hours were from 6 o’clock in the evening until 6 o’clock in the morning. The plaintiff company had erected a building containing a large room in which there were various kinds of machinery. On November 15, 1914, the time of the accident, a large opening had been made in the first floor of this building preparatory to installing a pasteurizing machine. Surrounding this opening *444there bad been placed beer boxes with planks upon tbem for ■a guard or railing. This railing was placed at the edge of the opening.

The decedent had done the cleaning of the building on Saturday night and Sunday morning and the brewery did not operate on Sunday, November 15, 1914, the date of the acci•dent. No one saw decedent in the building before he fell and there is no direct evidence showing what he was doing at this time. Decedent was required to turn on the steam in the pasteurizing machines sometime between midnight and 4 o’clock in the morning. This could be done from the basement floor.

Between 8 and 9 o’clock on the night of the accident the engineer and the assistant engineer were going through the Ubuilding when they discovered an object on the basement floor. Upon closer examination this proved to be the body of decedent, and he was unconscious. He was removed to a hospital and died there the following morning. There was an abrasion on the back of the head and one shoulder was bruised. The finger nails of one of his hands were turned back. On the middle of one of the planks at the north edge •of the opening there was an opened bottle of beer with the contents untouched.

The applicant is the wife of the deceased, and the *Commission*awarded her the maximum amount provided by the Compensation Act on account of his death.

For the appellant there was a brief by *Robert R. Freeman*and *Timothy Brown,*and oral argument by *Mr. Brown.*

For the respondent *Industrial Commission*there was a brief by the *Attorney General*and *Winfield W. Gilman,*assistant attorney general, and oral argument by *Mr. Gilman.*

Siebecker, J.

The *Industrial Commission*found that the decedent at the time of the accident was in plaintiff’s employ and “performing services growing out of and incidental *445to bis employment,” and that be “accidentally sustained personal injury, wbicb said injury caused bis death. . . .” Tbe *Commission*properly concluded from tbe evidence that decedent’s duties under plaintiff’s employment required of bim performance of services witbin tbe various parts of tbe bottling bouse. In passing on tbe claim for compensation tbe *Commission*declared that “tbe circumstances sbow an accidental injury” and that “there is no evidence in tbe case whatever to indicate suicide. ... As tbe duties of tbe deceased took bim to all parts of tbe building, it must be likewise presumed that be was injured in tbe course of bis employment.” There is no dispute that decedent’s duties began at 6 o’clock in tbe evening and continued to 6 o’clock in tbe morning, including tbe night from Sunday evening to Monday morning. There is evidence to support tbe inference that be on Sunday evenings usually went to the part of tbe building where be fell and that at times on Sunday evening be performed services in any part of tbe building. Under such circumstances it cannot be said that tbe *Commission's*finding that decedent was injured in tbe course of bis employment is wholly unsupported by tbe evidence. Tbe facts and circumstances of tbe case amply support tbe conclusion of fact that decedent accidentally sustained a personal injury wbicb caused bis death and that it was incidental to bis employment. This state of tbe case calls for affirmance of tbe judgment of tbe circuit court upholding tbe award of tbe *Industrial Commission. International H. Co. v. Industrial Comm.*157 Wis. 167, 147 N. W. 53; *Milwaukee Western F. Co. v. Industrial Comm.*159 Wis. 635, 150 N. W. 998; *Northwestern I. Co. v. Industrial Comm.*160 Wis. 633, 152 N. W. 416.

*By the Court.*— Tbe judgment appealed from is affirmed.