Ohrmund v. Indus. Comm'n

• Decision Date: 06 February 1933
• Citation: 211 Wis. 153,246 N.W. 589
• Parties: OHRMUND ET AL. v. INDUSTRIAL COMMISSION ET AL.
• Court: Wisconsin Supreme Court

211 Wis. 153

246 N.W. 589

OHRMUND ET AL.

v.INDUSTRIAL COMMISSION ET AL.^a1

Supreme Court of Wisconsin.

Feb. 6, 1933.

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

Suit by Oscar Ohrmund, employer, and another to set aside an award of the Industrial Commission granting compensation to John Paro, employee. From a judgment refusing to set aside the award, plaintiffs appeal.--[By Editorial Staff].

Reversed, and cause remanded, with directions.

Award of the Industrial Commission made October 12, 1931; judgment entered July 6, 1932. Workmen's compensation. The only question at issue here is whether or not on the day of the accident, June 27, 1931, the applicant was injured in the course of his employment. We state the facts in the language of the commission:

“The commission finds that the applicant had been employed by the respondent for a period of approximately six months as an auto mechanic; that his regular hours of employment were from 7:30 A. M. to 12:00 noon and from 12:30 P. M. to 6:00 P. M.; that he had off every alternate Saturday afternoon; that he was sometimes asked to work beyond the hours stipulated, for which period he received overtime pay at the rate of 75¢ per hour; that on June 27, 1931, the applicant was the only person employed by the respondent; that because the applicant had only one-half hour off at noon he always carried his lunch to the shop when he was required to work in the afternoon; that June 27, 1931, was a Saturday afternoon which ordinarily the applicant would have had ‘off’; that shortly before noon of that day the applicant inquired of the employer if he, the employer, wanted the applicant to come back to work that afternoon; that the employer replied: ‘Yes, I'd like to have you if you can make it, as there is lots of work;’ that the applicant replied: ‘I could but would have to go home to dinner;’ and that the applicant was then told by the respondent that he could use the respondent's car to go home to eat lunch and to hurry back to work.

The parties had in mind the fact that the applicant had not brought his lunch to the shop as he did when he had to work in the afternoon, and that if he returned home for his lunch and was required to walk or take the street car that he would be gone more than a half an hour. The applicant then did take the respondent's car ‘in order to hurry back.’ He proceeded to his home for his lunch and then started on the return trip to the shop. He did not have any other errand to perform for the respondent. On the return trip the car which he was driving was hit by a street car. The applicant was thrown out of the car and as a result sustained amputation of his right arm. On previous occasions when the applicant was required to work on Saturday afternoon which ordinarily he would have had off, and likewise after six o'clock in the afternoon when he was required to return to work for overtime in the evening, he was permitted to use the employer's car, in order to return as quickly as possible to his employment. There is some intimation in the record that one reason for using the respondent's car on this particular day was that it was a hot day and that walking home seven or eight blocks would be too hot for the applicant, but there is no question but what the principal reason for the use of the car was that it would enable the applicant to return to his employment within the half hour allotted for his lunch period.”

The trial court was of the view that the findings supported the conclusion of the commission that at the time of injury the applicant was performing services growing out of and incidental to his employment. Judgment was entered accordingly affirming the award, from which judgment the plaintiffs appeal.Richmond, Jackman, Wilkie & Toebaas, of Madison, for appellants.

J. E. Finnegan, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., and Irving P. Mehigan, of Milwaukee, for respondents.

ROSENBERRY, C. J.

Section 102.03, Wis. Stats., imposes liability for compensation where the following conditions of compensation occur: (1) Where the employee and the employer are subject to the provisions of the act.

“(2) Where, at the time of the accident, the employee is...