Geldnich v. Burg

• Decision Date: 11 June 1930
• Citation: 231 N.W. 624,202 Wis. 209
• Parties: GELDNICH v. BURG.
• Court: Wisconsin Supreme Court

202 Wis. 209

231 N.W. 624

GELDNICH

v.BURG.

Supreme Court of Wisconsin.

June 11, 1930.

Appeal from a judgment of the Circuit Court for Washington County; C. M. Davison, Circuit Judge.

Reversed.

Action by William Geldnich against Howard Rottenbach and Leo Burg, commenced on the 9th day of September, 1929, to recover damages resulting from an automobile accident. From a judgment entered in favor of the plaintiff on the 6th day of December, 1929, the defendant Leo Burg appeals.Rouiller & Dougherty, of Milwaukee (Thomas A. Byrne, of Milwaukee, of counsel), for appellant.

Sawyer & Gehl, of Hartford, for respondent.

OWEN, J.

The defendant, Leo Burg, is the proprietor of a garage located about one mile from the village of Slinger. Prior to the 18th day of October, 1927, he had employed the defendant Rottenbach, living in the village of Slinger, to work in said garage. In and by the terms of the contract of employment, he agreed to permit Rottenbach to use one of his cars in going back and forth from his home to his garage. While going from his home to the garage on the morning of October 18, 1927, his machine collided with a road grader being operated by the plaintiff, causing plaintiff personal injuries. The only question presented upon this appeal is whether at the time of the accident the automobile was being operated in the facilitation of the business of the defendant Burg, so as to make him liable for the negligence of the defendant Rottenbach.

[1] Under ordinary circumstances Rottenbach was, at the time, in the prosecution of his own business. Where an employee works for another at a given place of employment, and lives at home or boards himself, it is the business of the employee to present himself at the place of employment, and the relation of master and servant does not exist while he is going between his home and his place of employment. See cases cited in the dissenting opinion of Taylor, J., in Ewald v. Chicago & Northwestern R. Co., 70 Wis. 420, 437, 36 N. W. 12, 591, 5 Am. St. Rep. 178. It has accordingly been held by this court that, where an employer permitted an employee the use of a car in going to his meals, the employee was not facilitating the master's business, and the master was not responsible for damages resulting from his negligence while on such trips. Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016, 26 L. R. A. (N. S.) 382, 19 Ann. Cas. 1227;Gewanski v. Ellsworth, 166 Wis. 250, 164 N. W. 996;Bloom v. Krueger, 182 Wis. 29, 195 N. W. 851. However, where by the contract of employment it is made the duty of the master to transport the servant from his home, or other designated place, to the place of his work, the relation of master and servant exists during the course of such transportation. Ewald v. Chicago & Northwestern R. Co., 70 Wis. 420, 36 N. W. 12, 591, 5 Am. St. Rep. 178, and cases there cited. And under the Workmen's Compensation Act it is generally held that where, by the contract of employment, it is made the duty of the master to transport the employee to and from his work, injuries received by him in the course of such transportation grew out of and are incidental to his work. Rock County v. Industrial Commission, 185 Wis. 134, 200 N. W. 657;Littler v. Geo. A. Fuller Co., 223 N. Y. 369, 119 N. E. 554;Sala v. American Tobacco Co., 93 Conn. 82, 105 A. 346;In re Donovan, 217 Mass. 76, 104 N. E. 431, Ann. Cas. 1915C, 778.

From this we see that, under ordinary circumstances, it is the business of the employee to present himself at the place of employment, and while going thereto he is in the prosecution of his own business. Where, however, by the contract of employment the master undertakes to transport the employee to the place of his work, the trip is made in the prosecution of the master's business.

[2] By the contract of employment here under consideration Burg did not undertake to transport Rottenbach from his home to the garage. By the terms of that contract, however, Burg did agree to permit Rottenbach to use one of his cars in going back and forth. The question is whether during these trips the car was being driven to facilitate the business of Rottenbach or Burg.

The car was not being driven in the prosecutionof Burg's business, unless it was Burg's business to transport Rottenbach from his home to the garage. This cannot be...