Dibble v. Industrial Commission (Dept. of I. L. H. R.)

• Decision Date: 29 October 1968
• Citation: 40 Wis.2d 341,161 N.W.2d 913
• Parties: Shirley R. DIBBLE, Appellant, v. INDUSTRIAL COMM. (DEPT. OF I.L.H.R.), Philco Distributors, Inc., et al., Respondents.
• Court: Wisconsin Supreme Court

Page 913

161 N.W.2d 913

40 Wis.2d 341

Shirley R. DIBBLE, Appellant, v. INDUSTRIAL COMM. (DEPT. OF I.L.H.R.), Philco Distributors, Inc., et al., Respondents.

Supreme Court of Wisconsin.

Oct. 29, 1968.

LaFollette, Sinykin, Anderson, Davis & Abrahamson, Madison, for appellant; Earl Munson, Jr., Madison, of counsel.

Bronson C. LaFollette, Atty. Gen., James P. Altman, Asst. Atty. Gen., Madison, for respondent Industrial Commission.

BEILFUSS, Justice.

The issue is: Is there sufficient credible evidence to support the finding that the accident occurred while the decedent was engaged in a deviation from his employment in an act not reasonably necessary for living or incidental thereto within the meaning of the Workmen's Compensation Act?

The controlling statutory provisions are:

'102.03 Conditions of liability. (1) Liability under this chapter shall exist against an employer only where the following conditions concur:

'* * *

'(c) 1. Where, at the time of the injury, the employe is performing service growing out of and incidental to his employment. * * *

'* * *

'(f) Every employe whose employment requires him to travel shall be deemed to be performing service growing out of and incidental to his employment at all times while on a trip, except when engaged in a deviation for a private personal purpose. Acts reasonably necessary for living or incidental thereto shall not be regarded as such a deviation. Any accident or disease arising out of a hazard of such service shall be deemed to arise out of his employment.'

The facts governing the instant case are not in dispute.

"'* * * when facts are not in dispute, but permit the drawing of different inferences therefrom, the drawing of one of such permissible inferences by the commission is an act of fact finding, and the inference so derived constitutes a finding of an ultimate fact and not a conclusion of law. Hipke v. Industrial Comm., 1952, 261 Wis. 226, 231, 52 N.W.2d 401; Ebner v. Industrial Comm., 1948, 252 Wis. 199, 201, 31 N.W.2d 172; Green Valley Co-op. Dairy Co. v. Industrial Comm., 1947, 250 Wis. 502, 505--506, 27 N.W.2d 454." American Motors Corp. v. Industrial Comm. (1957), 1 Wis.2d 261, 264, 265, 83 N.W.2d 714.' Neese v. State Medical Society (1967), 36 Wis.2d 497, 503, 153 N.W.2d 552, 555.

If more than one inference can be reasonably drawn, then the finding of the department is conclusive, Schmidlkofer v. Industrial Comm. (1953), 265 Wis. 535, 61 N.W.2d 862; Van Roy v. Industrial Comm. (1958), 5 Wis.2d 416, 92 N.W.2d 818, and this court will affirm a finding of fact of the department unless such finding of fact is clearly against all credible evidence or is so inherently unreasonable so as not to be entitled to any weight. Van Valin v. Industrial Comm. (1962), 15 Wis.2d 362, 367, 368, 112 N.W.2d 920; Bergner v. Industrial Comm. (1968), 37 Wis.2d 578, 589, 155 N.W.2d 602.

As pointed out by the appellant, because of the presumption created by the statute there must be a finding of two essential facts by the department before benefits can be denied. There must be (1) a deviation by the employe from his business trip, and (2) such deviation must be for a personal purpose not reasonably necessary for living or incidental thereto.

The fatal injury occurred within Dibble's assigned territory while he was on a business trip. This is sufficient to raise the statutory presumption that he was within the scope of his employment.

In Tyrrell v. Industrial Comm. (1965), 27 Wis.2d 219, 224, 133 N.W.2d 810, 813, we stated:

'This presumption will continue in the absence of evidence to the contrary. Armstrong v. Industrial Comm. (1948), 254 Wis. 174, 35 N.W.2d 212; Racine County v. Industrial Comm. (1933), 210 Wis. 315, 246 N.W. 303. The presumption is rebuttable and drops out when evidence to the contrary is presented. In Armstrong v. Industrial Comm., supra, this court was presented with a comparable factual situation:

"In addition to contentions based upon the facts it is contended by applicant that sec. 102.03(1)(f), Stats.1945 puts upon the employer the burden of proving the fact of deviation from the course of employment. It is further contended that upon the introduction of evidence that deceased was in the service of his employer when last seen applicant is entitled to a presumption that he continued in his employment and that he was so engaged at the time of his death.

"We do not find it necessary to discuss or determine the merits of these contentions because we conclude that, even if the burden of proof is upon the employer to show deviation and even though the applicant is entitled to the presumption just referred to, there is evidence to support the commission's finding that decedent at the time of his accidental drowning was not performing services growing out of and incidental to his employment. It is obvious that evidence sufficient to sustain this burden is sufficient to rebut the presumption. In commenting upon the evidence it should be kept clearly in mind that the commission was not seeking a complete explanation of the circumstances of decedent's death. Had this been the objective it is probably true that such an explanation could only be arrived at by guess. The issue is whether there is substantial evidence that at the time of his death Armstrong had deviated from his employment and was not performing services growing out of and incidental thereto." ¹

There is no question that the deviation was not for a business purpose. Dibble had finished his day's work; he had completed his daily report, his planned itinerary would not take him north of the Ona Motel nor the Blue Moon Lounge; his next scheduled call was planned for 10 a.m. the next day at La Crosse, which, is south of Onalaska and south of the Ona Motel; and there is no evidence to even remotely suggest that he intended to contact any potential customers or otherwise act in furtherance of his employer's business at the time and place in question. This evidence is sufficient to allow the department to find 'that the deceased had deviated for a personal purpose and not for the benefit of the employer and had not returned to the normal route to be used in his work at the time of the fatal accident.'

The statute, however, provides that '(a)cts reasonably necessary for living or incidental thereto shall not be regarded as such a deviation.' The question remains, therefore, whether there is credible evidence upon which the department could conclude that the deviation, although for a personal purpose, was not an act reasonably necessary for living or incidental thereto.

The appellant relies primarily upon the case of Hansen v....