Hackley-Phelps-Bonnell Co. v. Indus. Comm'n

• Decision Date: 15 May 1917
• Citation: 165 Wis. 586,162 N.W. 921
• Parties: HACKLEY-PHELPS-BONNELL CO. v. INDUSTRIAL COMMISSION ET AL.
• Court: Wisconsin Supreme Court

165 Wis. 586

162 N.W. 921

HACKLEY-PHELPS-BONNELL CO.

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

May 15, 1917.

Appeal from Circuit Court, Dane County; E. Ray Stevens, Judge.

Action by Gus Drewetzki, employé, for workmen's compensation, opposed by the Hackley-Phelps-Bonnell Company, employer. On the employer's petition to test validity of an order of the Industrial Commission awarding compensation. From a judgment confirming the order, the employer appeals. Affirmed.

In May, 1914, Gus Drewetzki was employed by an agent in Chicago to work for plaintiff in a logging camp near Phelps, Wis. When he arrived at Phelps plaintiff's bookkeeper sent him to the camp by its logging train and told him to come to Phelps to get his pay. On February 8, 1915, Drewetzki told the foreman of the camp that he was going to take a vacation and the foreman told him to go to Phelps to get his money, and gave him a time slip for that purpose. He also told him that the first train was gone, and that he would have to walk and meet the other one. Drewetzki walked three or four miles from camp, and then got on the train, and while riding thereon received an injury to his arm which necessitated amputation at the shoulder, for which injury he was awarded compensation. Employés usually went from the camp at which they were working to Phelps on the logging train and railway owned and operated by plaintiff, and Drewetzki paid no fare for rides he had had on the train. He says he was through with his work when he received his time till he came back again. The plaintiff's cashier and auditor testified:

“The company furnished a train for employés to go out to the camp. It came in twice a day, and we always told them about what time it left for camp, and sometimes we held the train until the afternoon passenger train came in, when we had quite a number of men coming in a day, and told the trainmen to take them out. There is a special car outside of the regular car on the train when there is a crowd--a wood car which we are using in taking wood to the chemical works. This road out to the camp at which the applicant worked is owned by the company and is used for carrying logs and wood to the town of Phelps, but not to carry passengers. It carries no passengers or freight for hire.”

Plaintiff's construction foreman testified:

“The applicant worked for me three or four years prior to February 8, 1915. He used to go to town and take a vacation and then come back. On February 8, 1915, right after dinner, he told me that he was going to take a lay-off for a few days, so I gave him his time slip and told him he would have to go to the office for the rest of his time and get his money there.”

The commission found that Drewetzki received his injury while in the employ of the plaintiff and while performing service growing out of and incidental to his employment and awarded him compensation according to the statute. Plaintiff brought an action in the circuit court for Dane county to test the validity of the commission's order awarding compensation, and from a judgment confirming the order, it appealed.Brown, Pradt & Genrich, of Wausau, for appellant.

W. C. Owen, Atty. Gen., and Winfield W. Gilman, Asst. Atty. Gen., for respondents.

VINJE, J. (after stating the facts as above).

[1] The ground upon which plaintiff seeks to set aside the order of the commission is that the employé was not at the time of his injury in the employment of plaintiff, nor performing service incidental to or growing out of such employment, and it is claimed that this is conclusively shown because the employé testified that when he received his time slip he was through with his work until he should come back again. There is no dispute about the facts. That being so, the question whether the relation of employer and employé was terminated upon the receipt of the time slip is one that must be determined from correct inferences drawn from the undisputed facts. The employé's opinion concerning it could not bind the judgment of the commission or that of the courts. But it is quite evident that the employé meant only that he had no further work to do for the employer till he came back, meaning by work only such manual labor as he had been doing for the employer. So the testimony relied upon does not materially affect the question determined by the commission.

[2] It appears from the evidence that Phelps was the headquarters for the logging operations of plaintiff. The employé was sent there from Chicago. He reported there for duty, and was told by the bookkeeper to go to the camp in question, but that he had to come back to Phelps for his pay. His employer furnished the employés transportation free to and from the camps. That such means of transportation were primarily used for the transportation of logs is immaterial. When the employé received his time slip he was told by the foreman that he had to go to Phelps to get his pay, and he was informed that he could ride on the logging train, as he had done before, and as he knew the custom was. The logging road and train belonged to the employer and were used in the prosecution of the business the...