Karlslyst v. Indus. Comm'n

• Decision Date: 12 October 1943
• Citation: 243 Wis. 612,11 N.W.2d 179
• Parties: KARLSLYST et al. v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

243 Wis. 612

11 N.W.2d 179

KARLSLYST et al.

v.INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

Oct. 12, 1943.

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

Reversed.

This action was begun on July 16, 1942, in the circuit court for Dane county, to set aside an interlocutory order of the Industrial Commission, dated June 25, 1942, ordering J. S. Karlslyst and Liberty Mutual Insurance Company to pay certain sums to Kenneth Wikum for temporary disabilityand retaining jurisdiction. Upon the trial, the trial court vacated the interlocutory order and from that judgment dated January 20, 1943, the Industrial Commission and Kenneth Wikum, claimant, appeal.

The facts will be stated in the opinion.

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

Otjen & Otjen, of Milwaukee, for respondents.

ROSENBERRY, Chief Justice.

Kenneth Wikum and a fellow employe were sent by J. S. Karlslyst, their employer, from Stoughton to Jewett, Wisconsin, in a Mack semi-trailer truck to get some equipment for their employer and bring it back to Stoughton. The two men took turns at driving the truck. On January 27, 1942, at about 2 o'clock in the afternoon, while his fellow employe was driving on U. S. Highway No. 12, about half a mile to a mile past Baldwin, Kenneth Wikum left the seat of the truck and stood on the right running-board intending to urinate. The truck was moving at about 25 to 30 miles an hour. While on the running-board Wikum lost his hold, fell to the ground and broke his left leg and a tooth.

The industrial commission found that at the time of the injury Wikum was performing services growing out of and incidental to his employment and ordered the payment of compensation. The circuit court set aside the order of the commission. The trial court was of the view that the applicant was performing or about to perform a criminal act, that is, to commit indecent exposure. The court was also of the view that under the provisions of sec. 85.39, Wisconsin Stats., which provides that it shall be unlawful for any person to ride on any vehicle upon any portion thereof not designed or intended for the use of passengers when the vehicle is in motion, the claimant was violating a statutory provision intended for his protection. While the court recognized the rule that the mere breach of statutory duty does not bar recovery under the Compensation Act (Gimbel Brothers v. Industrial Comm., 1938, 229 Wis. 296, 302, 282 N.W. 78), it held that “There was nothing natural about what he was attempting at all. It was the unnatural, unreasonable, preposterous and silly-in addition to being about criminal.”

The claimant's injuries were not proximately caused by his attempt to urinate but that he deliberately placed himself in a place of danger. “He courted injury. He should be barred from compensation.” Citing Peterman v....