Githens v. Indus. Comm'n

• Decision Date: 03 March 1936
• Parties: GITHENS v. INDUSTRIAL COMMISSION ET AL.
• Court: Wisconsin Supreme Court

220 Wis. 658

265 N.W. 662

GITHENS

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

March 3, 1936.

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

Proceeding under the Workmen's Compensation Act by Herbert A. Githens, claimant, opposed by the Home Insulation Company of Milwaukee, Incorporated, employer, and the Lumbermen's Mutual Casualty Company, insurance carrier. From a judgment confirming an order of the Industrial Commission denying compensation, claimant appeals.--[By Editorial Staff.]

Affirmed.

This appeal is from a judgment of the circuit court for Dane county entered June 13, 1935, confirming an order of the Industrial Commission dated September 24, 1934, discharging the Home Insulation Company of Milwaukee, Inc., and its insurance carrier, Lumbermen's Mutual Casualty Company, from liability for injuries sustained by appellant. The appellant was president, general manager, and treasurer of the respondent insulation company. He performed various kinds of work, including services as general manager in making sales and collections and doing inspection work. The greater part of his work was performed outside of the office. Because he inspected and did sales work, it was necessary for him to drive a car. He had an arrangement with his employer whereby it paid the expense of operating his automobile while on the business of the company.

On November 8, 1933, appellant made appointments with two employees of the company for 7:15 that evening at the company office. He then left to check on jobs being done by his company on the north side of Milwaukee and was engaged in this work until about 6:30 p. m. He then went to his home for supper, was at home for about twenty-five minutes, and then started in his car for the office. When he was within a block of the office, he became involved in a traffic accident which resulted in a fracture of his left leg.

The respondent Industrial Commission found that appellant at the time of his injury was going to and from work in the ordinary and usual way, but that when his injury was sustained he was not on the premises of his employer and that he was not performing services growing out of and incidental to his employment.

August C. Moeller, of Milwaukee (Emmet Horan, Jr., of Milwaukee, of counsel), for appellant.

James E. Finnegan, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondent Industrial Commission.

John L. Schlatterer, of Milwaukee (M. T. Lee, of Milwaukee, of counsel), for respondents Home Insulation Co. of Milwaukee and Lumbermen's Mut. Casualty Co.

MARTIN, Justice.

The statute, section 102.03, provides in part:

“(1) Liability under this chapter shall exist against an employer only where the following conditions concur: * * *

(c) Where, at the time of the injury, the employee is performing service growing out of and incidental to his employment. Every employee going to and from his employment in the ordinary and usual way, while on the premises of his employer, shall be deemed to be performing service growing out of and incidental to his employment.”

The appellant contends that at the time of the accident he was performing services growing out of and incidental to his employment because he was in the act of completing a trip in his automobile as an outside worker, which work had commenced earlier in the day; that the continuity of this trip was not broken by going to his home for the evening meal. In other words, that the afternoon trip continued until he had reached the company office to keep the appointment which he had made there for 7:15 p. m.

On the afternoon of the accident the appellant used his car in going to the places where he made inspections. It is conceded that the inspection work was completed at about 6:30 p. m. The appellant then went to his home. It is further conceded that when appellant left his home, he intended going directly to the office to attend to general office work, to rearrange certain desks at the office, and to prepare certain records for workmen for the following day. He testified, in part, as follows:

“Q. In returning to the office on November 8, after you had had your supper, were you going to make any inspection work? A. Not in the office. No sir. Inspection work is outside. Just general office work. Get prepared for the next day's layout of work and rearrange some things in the office.

Q. You were going to do office work? A. Well, it is office work in preparing your records or your specifications or orders for workmen for the next day and laying them out.

Q. You weren't going to do any outside work? A. No sir. In the dark we can't. That's why we do office work at night. We quite frequently go back in the evening when we are busy.”

Appellant's counsel contends that the instant case is controlled by the decision in Schmiedeke v. Four Wheel Drive Auto Co., 192 Wis. 574, 578, 579, 213 N.W. 292. The facts in that case are clearly distinguishable from those in the instant case. There, a traveling salesman was injured while returning to his employer's home office in response to instructions from his employer. In that case the injured employee was at work while returning to the office. It wasn't a case of going to and from work. The court said, 192 Wis. 574, at page 578, 213 N.W. 292, 293: “In obedience to the employer's instructions he was to be at the office in Clintonville Monday morning. * * * It seems apparent that, whenever the trip was undertaken he was clearly within the scope of his master's employment while on his return. The trip for the week was an entity. It included going and coming. Even though at times during the week he departed from the scope of his employment, upon his return trip to Clintonville for the purpose of reporting to the office pursuant to his instructions he was again within the scope of his employment.” To the same effect, see McKesson-Fuller-Morrisson Co. v. Industrial Comm., 212 Wis. 507, 250 N.W. 396;Racine County v. Industrial Comm., 210 Wis. 315, 246 N.W. 303.

If, after his evening meal, the appellant resumed inspection work before going to the office, and while so engaged the accident occurred, he would then be in the course of his employment and entitled to the protection of the Workmen's Compensation Act (St. 1933, § 102.01 et seq.). But that isn't the case as presented here on the undisputed facts. There is no showing of any obligation on the part of the employer to transport appellant to and from work. The employer owed him no duty to take him from his home to the office, and in traveling from his home to his office, appellant was in the same situation as any other employee while on his way from his home to the place of employment.

In Western Fruit Co. v. Industrial Comm., 206 Wis. 125, 127, 238 N.W. 854, 855, the court said: “Under our statute, section 102.03(2), for liability to exist it is essential that ‘at the time of the accident, the employee is performing service growing out of and incidental to his employment.’ It is especially provided that while going to and from work in the usual way, ‘while on the premises of the employer,’ an employee shall...