Gibbs Steel Co. v. Indus. Comm'n

• Decision Date: 14 September 1943
• Citation: 10 N.W.2d 130,243 Wis. 375
• Parties: GIBBS STEEL CO. et al. v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

243 Wis. 375

10 N.W.2d 130

GIBBS STEEL CO. et al.

v.INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

June 16, 1943.

Rehearing Denied Sept. 14, 1943.

Appeal from a judgment of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Judgment affirmed.

Action to review an award of the Industrial Commission commenced on the 15th day of April, 1942, by Gibbs Steel Company, a Corporation, and Employers Mutual Liability Insurance Company, a Corporation, v. Donald MacArthur and Industrial Commission of Wisconsin. From a judgment dated December 24, 1942, setting aside the interlocutory award of the commission, defendants appeal. The material facts will be stated in the opinion.

John E. Martin, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for appellants.

Quarles, Spence & Quarles, of Milwaukee (Kenneth P. Grubb and Howard T. Foulkes, both of Milwaukee, of counsel), for respondents.

WICKHEM, Justice.

Claimant, Donald MacArthur, aged fifty-eight, was employed by the Gibbs Steel Company as a traveling salesman. He lived in Shorewood, Milwaukee County. His territory included nearly the entire state of Wisconsin, as well as northern Michigan. The employer paid all of his expenses at hotels and gave him an allowance of seventy-five dollars a month for the upkeep and maintenance and operation of his car. The selection of lodgings was left to claimant's discretion. In the course of one of his trips he arrived in Madison on October 27, 1941, and stayed at the Madison Club. On the 28th he made business calls at Baraboo, Portage and Waupun. In the evening he went to a tourist camp on the outskirts of Madison, selecting the cabin because it would be convenient in enabling him to get an early start for Stoughton the next morning. He had a room with a shower bath adjoining and while stepping under the shower he slipped on a small rug, fracturing his femur. It is not claimed that the room or bath were in any way unsafe.

The commission found that the injury arose out of and in the course of his employment. The circuit court held to the contrary.

Appellants contend that there was an issue of fact whether the injury arose out of, and in the course of, MacArthur's employment, and that there is credible evidence to support the commission's affirmative finding upon this issue. We cannot agree with this contention. Neither the facts nor the inferences are in any dispute, and the sole question is as to the application of the statute to these undisputed facts and inferences. This is a question of law. It is asserted that this court held to the contrary in Eckhardt v. Industrial Comm., 242 Wis. 325, 7 N.W.2d 841. However, an examination of that case will disclose that a majority of the court considered that the undisputed facts there gave rise to conflicting inferences and for this reason an issue of fact and not of law was held to be presented.

The question is (1) whether a traveling salesman whose work requires him to travel from place to place, whose expenses of travel including hotel bills are fully paid by the employer, but who is given a free choice in the selection of his sleeping accommodations in a territory where usual and ordinary accommodations of the sort that he would enjoy at home are available, is in the course of his employment while taking a bath in a room rented by him at a tourist camp and (2) whether injuries sustained by slipping upon a bath mat arose out of his employment.

This question has not been directly passed upon in this state and it is a question upon which there is a considerable difference of opinion in the authorities. In Holt L. Co. v. Industrial Comm., 168 Wis. 381, 170 N.W. 366, the employee worked at a lumber camp eight miles from the nearest habitation and was required to stay in a bunk house owned and furnished by the employer. He sustained an injury when a straw from an upper bunk fell and lodged in his throat as he was reclining in his own bunk. It was held that the injury was compensable. This court there stated that the general rule under the authorities is that when the contract of employment contemplates that the employee shall sleep upon the premises of the employer the...