Racine Cnty. v. Indus. Comm'n of Wis.

• Decision Date: 10 January 1933
• Citation: 210 Wis. 315,246 N.W. 303
• Parties: RACINE COUNTY ET AL. v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.
• Court: Wisconsin Supreme Court

210 Wis. 315

246 N.W. 303

RACINE COUNTY ET AL.

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1933.

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

Action by Racine County and another against the Industrial Commission and Minerva Stewart, claimant, to set aside an award of the Industrial Commission. From a judgment affirming the award in favor of claimant, plaintiffs appeal.--[[[By Editorial Staff.]

Affirmed.

Action to set aside an award of the Industrial Commission granting to Minerva Stewart $1,200 as the partially dependent unestranged surviving parent of Carrie M. Stewart, an employee of Racine county, and to the state $1,600, under the provisions of sections 102.48 and 102.49(5), Stats. From a judgment entered June 20, 1932, affirming the award, the employer and its insurance carrier appeal.Quarles, Spence & Quarles, of Milwaukee (Arthur B. Doe, of Milwaukee, of counsel), for appellants.

John W. Reynolds, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., and Rogers & Owens, of Portage, for respondents.

FOWLER, J.

The deceased was in the service of Racine county as a supervising teacher of rural schools. Both she and the county were subject to the Workmen's Compensation Act. The only question litigated is whether at the time of the accident resulting in her death the deceased was “performing services growing out of and incidental to her employment.” St. 1929, § 102.03.

[1] In the performance of her duties as supervising teacher, the deceased used her own automobile. At about 10:45 in the night of April 23, 1931, her automobile was found on its side in the Fox river. The automobile tracks indicated that it ran off the highway into the river at a bridge. Miss Stewart was in the automobile, drowned. Her watch had stopped at 9 o'clock. She was last seen at a hotel in Burlington where she took dinner from 6:30 to 7:30 o'clock. She was then examining some papers, the nature of which does not affirmatively appear. She had left her home in the morning and visited two schools in the vicinity of Burlington during the day, and had left the one last visited around 5 o'clock. At 5:30 o'clock she had stopped to take gasoline at a service station at Waterford, a few miles from Burlington, and near the school last visited. The place where she was found was not on the most direct route from Burlington to the place of her residence, but on one six miles farther which, however, might be taken in preference, and was on the way towards the schools she was to visit the next day. Besides visiting schools the duties of the deceased at times required her to visit parents and pupils, and she often performed these duties in the evening, returning home at times as late as 11 o'clock. Schools which she was required to visit other than those visited on the day of her death were located south of Burlington. She had been sick, and during the day had expressed solicitude over being behind with her work. She was absorbed in her work, and conscientiously devoted herself to it. She was not in the habit of going out evenings upon social calls or for personal reasons, and there is no evidence that she had any personal business or engagement to account for her being at Burlington or at the place where she was found.

The appellants contend that the burden is on the claimant to prove that at the time of the accident involved Miss Stewart was performing service incidental to her employment; that this requires proof of just what she was doing at the time; that as there is no such proof the inference that she was performing service incidental to her employment rests...