Marmolejo v. Department of Industry, Labor and Human Relations, 77-297

• Court: United States State Supreme Court of Wisconsin
• Citation: 285 N.W.2d 650,92 Wis.2d 674
• Docket Number: No. 77-297,77-297
• Parties: Manuel MARMOLEJO, Plaintiff-Appellant, v. DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, Mid-City Foundry, a Wisconsin corporation, and Employers Insurance of Wausau, Defendants-Respondents.
• Decision Date: 04 December 1979

Page 650

285 N.W.2d 650 92 Wis.2d 674 Manuel MARMOLEJO, Plaintiff-Appellant,
v.
DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS, Mid-City
Foundry, a Wisconsin corporation, and Employers
Insurance of Wausau, Defendants-Respondents. No. 77-297. Supreme Court of Wisconsin. Argued Nov. 6, 1979.
Decided Dec. 4, 1979.

[92 Wis.2d 676] Donald M. Lieb, Milwaukee (argued), for appellant; Prosser, Wiedabach & Quale, S. C., Milwaukee, on the brief.

Donald P. Johns, Asst. Atty. Gen. (argued), with whom on the brief was Bronson C. La Follette, Atty. Gen., for Dept. of Industry, Labor and Human Relations.

COFFEY, Justice.

This is an appeal from the judgment of the Circuit Court for Dane County confirming an order of the Department of Industry, Labor and Human Relations, defendant-respondent, (hereinafter referred to as the Department), wherein it affirmed the findings

Page 651

and order of the hearing examiner denying Manuel Marmolejo's (hereinafter the appellant), claim for worker's compensation.

The material facts of this case are undisputed and are contained in the hearing examiner's findings of fact. Manuel Marmolejo was employed by the Mid-City Foundry (hereinafter Mid-City), as a "clamper", ¹ and worked a regular shift commencing at 5:00 a.m. and ending between 2:30 p.m. and 3:30 p.m., five days a week. When he arrived at work he would punch in at a time clock and then punch out at the end of the day. The appellant was given a daily half hour lunch break between noon and 12:30 p.m., but was not required to punch in or out at the time clock when he left for and returned from lunch. The appellant was paid on an hourly time rate but not compensated for the lunch break. Mid-City provided a lunchroom and a vending machine for use by its employees, however, the appellant did not make use of these facilities but went out to eat lunch almost daily.

On February 20, 1975 the appellant left the foundry as a passenger in a car driven by a co-employee for lunch [92 Wis.2d 677] at a tavern-restaurant located at 16th and Pierce Streets. While en route to the tavern-restaurant the co-employee's car was involved in an accident which caused multiple injuries to the appellant and prevented his return to work.

The appellant applied for worker's compensation benefits and his employer, Mid-City, denied that the injuries sustained in the auto accident grew out of or were incidental to his employment, and thus was not entitled to coverage under the Worker's Compensation Act. A hearing was held before an examiner for the department who denied coverage in the following language:

" . . . the applicant (MARMOLEJO) was not on the premises of the employer at the time of his injury; that the applicant's injury did not occur while he was performing services growing out of and incidental to his employment with the respondent; . . . ."

The hearing examiner's findings and order were upheld by the department and confirmed in the Circuit Court for Dane County. Judgment affirming the order of the Department was entered September 2, 1977. The appellant appeals from this judgment.

ISSUES :

1. Is an employee who is injured in an automobile accident off his employer's premises while voluntarily going to lunch performing services incidental to his employment so as to entitle him to worker's compensation benefits?

2. Is the denial of worker's compensation benefits to the appellant, in this case, a denial of his constitutional right to equal protection under the 14th Amendment of the United States Constitution?

On appeal the appellant contends that his injuries in the automobile accident occurred while performing services growing out of and incidental to his employment, [92 Wis.2d 678] within the meaning of sec. 102.03(1)(c) 1, Stats., ² and thus he was entitled to worker's compensation benefits. Specifically, the appellant contends he is entitled to compensation under the "personal comfort" doctrine.

Page 652

The personal comfort doctrine was first recognized in Wisconsin in Milwaukee Western Fuel Co. v. Industrial Comm., 159 Wis. 635, 150 N.W. 998 (1915); Northwestern Iron Co. v. Industrial Comm., 160 Wis. 633, 152 N.W. 416 (1915). The doctrine was developed:

" . . . to cover the situation where an employee is injured while taking a brief pause from his labors to minister to the various necessities of life. Although technically the employee is performing no services for his employer in the sense that his actions do not contribute directly to the employer's profits, compensation is justified on the rationale that the employer does receive indirect benefits in the form of better work from a happy and rested workman, and on the theory that such a minor deviation does not take the employee out of his employment." Comment, Workmen's Compensation: The Personal Comfort Doctrine, 1960 Wis.L.Rev. 91.

[92 Wis.2d 679] The appellant argues that the act of eating lunch, such as in this case, even though away from his place of employment, ministers to his personal comfort (I.e., the employee's) and thus is incidental to his employment.

The personal comfort doctrine has been applied in many diverse fact situations as follows:

" 'Compensation has been allowed where an employee was getting a drink (Vennen v. New Dells L. Co., 161 Wis. 370, 154 N.W. 640; Widell Co. v. Industrial Comm., 180 Wis. 179, 192 N.W. 449); eating lunch on the premises (Milwaukee Western Fuel Co. v. Industrial Comm., 159 Wis. 635, 150 N.W. 998; Racine Rubber Co. v. Industrial Comm., 165 Wis. 600, 162 N.W. 664); warming himself (Northwestern Iron Co. v. Industrial Comm., 160 Wis. 633, 152 N.W. 416); sleeping in place provided (Holt Lumber Co. v. Industrial Comm., 168 Wis. 381, 170 N.W. 366; John H. Kaiser Lumber Co. v. Industrial Comm., 181 Wis. 513, 195 N.W. 329); visiting toilet (Milwaukee Western Fuel Co. v. Industrial Comm., 159 Wis. 635, 150 N.W. 998); going for pay (Hackley-Phelps-Bonnell Co. v. Industrial Comm., 165 Wis. 586, 162 N.W. 921); riding on conveyance provided by master (Hackley-Phelps-Bonnell Co. v. Industrial Comm., 165 Wis. 586, 162 N.W. 921; Rock County v. Industrial Comm., 185 Wis. 134, 200 N.W. 657); while going from place to place on a city street (Schroeder & Daly Co. v....