Barragar v. Indus. Comm'n of Wis.

• Decision Date: 13 October 1931
• Citation: 238 N.W. 368,205 Wis. 550
• Parties: BARRAGAR v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

205 Wis. 550

238 N.W. 368

BARRAGAR

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

Oct. 13, 1931.

Appeal from a judgment of the Circuit Court for Dane County; A. G. Zimmerman, Circuit Judge.

Action by Ethel Barragar against the Industrial Commission of Wisconsin and others. From a judgment of the circuit court setting aside an order of the Industrial Commission dismissing the application of the plaintiff for compensation for the death of her husband, she appeals.--[By Editorial Staff.]

Reversed and remanded, with directions.

The judgment appealed from, which is dated December 13, 1930, set aside an order of the Industrial Commission, dated March 19, 1930, dismissing the application of the plaintiff for death benefit because of the death of her husband, Henry C. Barragar.

The decedent, aged thirty-nine, was a salesman and general utility man in the employ of the Meyer Furnace & Supply Company. His wife and family were at Couderay, Wis., on a vacation. On August 13, 1926, Mr. Barragar requested permission from Mr. Jackson, the company manager, to go to Couderay and bring his family back to Milwaukee. At this time the company had owing to it accounts by dealers in Stanley and Wisconsin Rapids. Mr. Jackson told him that it was all right for him to go, but asked Mr. Barragar to stop at Wisconsin Rapids and Stanley for the purpose of making the collections. Stanley and Wisconsin Rapids are nearer to Milwaukee than Couderay; Stanley being on the usual route between Couderay and Milwaukee, and Wisconsin Rapids just off this route. Mr. Barragar left Milwaukee on Saturday, August 14th, for Couderay and stopped on his way and interviewed the debtors both at Wisconsin Rapids and Stanley. He stayed at Couderay from Saturday until Wednesday, resting and visiting with his family and friends. He then started back with his family and some friends, in his car. On arriving at Stanley he again interviewed the debtor. At 4 o'clock that afternoon, on August 18th, when some distance beyond Abbotsford, his car was forced off the road, and Mr. Barragar was killed. At the time of the accident he was on the regular route to Milwaukee, and had made no deviation for the purpose of going to Wisconsin Rapids or otherwise performing company business.

The commission found that upon the whole record the primary purpose of deceased in making the trip was to get his wife and bring her back to Milwaukee, and merely incidentally to check up on customers of the respondent. Under these circumstances, the commission concluded that at the time of the injury the deceased was not performing services growing out of and incidental to his employment, and ordered the dismissal of the application. The circuit court set aside this order, and held that, from the time the deceased commenced to slow down his automobile to stop and transact business at Stanley, to the time he would have left Wisconsin Rapids after stopping to transact company business there, as he would have done under the arrangement but for the accident, he was performing service growing out of and incidental to his employment, and that whether he would be doing this primarily or not would be immaterial under the statute.John W. Reynolds, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., and Fisher, Cashin & Reinholdt, of Stevens Point, for appellants.

Wood, Warner & Tyrrell and Jackson M. Bruce, all of Milwaukee, for respondent.

WICKHEM, J.

[1][2][3] It is the contention of the appellant commission that the only question involved is whether there is credible evidence to sustain the finding that at the time of the injury Mr. Barragar was not performing services growing out of and incidental to his employment.

On the part of the respondent it is contended that the commission erroneously based its conclusions upon the fact that the trip was primarily for the purpose of the deceased and only secondarily for that of his employer, and that this was an error of law rather than of fact, since it constituted the application of an erroneous test to facts that were not in dispute.

The case presents a difficult problem and one to which earnest consideration has been given. We have concluded that it is essential, by some process or other, to determine whether, at the outset, the trip in question was that of the employer, or that of the employee. Having determined that it was the employer's trip, the employee is engaged in his employer's business and acting within the scope of his employment while going to and returning from the terminus of the trip. If it is the employee's trip, he is not within the scope of his employment while en route to, or returning from, the terminus of his trip. In case it is the employer's trip, and there are any detours for purely personal...