Chamberlain v. Industrial Commission

• Decision Date: 05 November 1958
• Citation: 92 N.W.2d 829,5 Wis.2d 411
• Parties: Andrew CHAMBERLAIN, Plaintiff-Respondent, v. INDUSTRIAL COMM., Defendant-Respondent, Village of Niagara, a Municipal Corporation, et al., Appellants.
• Court: Wisconsin Supreme Court

Page 829

92 N.W.2d 829

5 Wis.2d 411

Andrew CHAMBERLAIN, Plaintiff-Respondent, v. INDUSTRIAL COMM., Defendant-Respondent Village of Niagara, a Municipal Corporation, et al., Appellants.

Supreme Court of Wisconsin.

Nov. 5, 1958.

Plaintiff applied to the Industrial Commission for an award of workmen's compensation, and commenced this action in the circuit court to review the commission's order denying his application. The court set aside the commission's order. The employer and its insurance carrier appeal. Plaintiff Chamberlain was employed by the village of Niagara as its deputy marshal, at a flat monthly salary. His duties involved a regular eight hour patrol, the investigation of criminal offenses and accidents occurring within the village, and other police services; and he was subject to call at the times. On May 28, 1954 at about 11:30 p. m. he was hit and severly injured by a runaway automobile while standing on the front porch of Kay's restaurant in Niagara, conversing with one Wicklund, a police officer of Norway, Michigan. The questions before the commission were whether at the time of the injury Chamberlain was performing service growing out of and incidental to his employment, and whether the accident arose out of his employment. Two weeks earlier a theft of some antenna equipment from the community television antenna had been reported, and plaintiff undertook an investigation of the crime. He spent some time on the investigation nearly every day. Most of the investigation work of the Niagara police was done while the investigator was not on patrol duty. In the course of the investigation, officer Wicklund of Norway, Michigan, 9 miles from Niagara, was notified of the theft. On the day of the accident, Chamberlain had concluded his patrol shift at 5:00 P.M. After supper at home he and his wife went to a picture show which lasted until 10:00 o'clock, and then, accompanied by his wife, he made two rounds of the village in his car, covering practically every street, in accordance with his custom of making an inspection tour of the village during the evenings when he was not on patrol duty. Then the two of them went to Kay's for coffee. Earlier that day officer Wicklund at Norway had received information leading him to believe that certain persons had some connection with the theft of the antenna parts in Niagara, and he determined to report such information and the names of the two persons to the marshal or deputy marshal of Niagara. That evening, while on a ride with a friend, he came to Niagara for that purpose.

While Mr. and Mrs. Chamberlain were drinking their coffee in the restaurant, officer Wicklund entered and accosted plaintiff. There is some conflict in the evidence as to just what was said. The examiner found, and the commission affirmed the finding, that without any pre-arranged appointment, * * * (Wicklund) asked if the applicant would go outside for a minute, and on being informed that the information was private and the fellow officer would rather speak outside the restaurant, the applicant without any further definite information proceeded to leave the restaurant with the fellow officer, and as they entered the porch of the restaurant, the applicant was struck by an automobile'.

On the foregoing facts, which were undisputed save in the particular mentioned, the examiner found that the activities of the applicant after 5:00 p. m. 'was not in the furtherance of his duties as deputy marshal, and was purely personal in character'. The examiner concluded his findings of fact with the following:

On the basis of the above facts the examiner...