Rock Cnty. v. Indus. Comm'n

• Decision Date: 11 November 1924
• Citation: 200 N.W. 657,185 Wis. 134
• Parties: ROCK COUNTY ET AL. v. INDUSTRIAL COMMISSION ET AL.
• Court: Wisconsin Supreme Court

185 Wis. 134

200 N.W. 657

ROCK COUNTY ET AL.

v.INDUSTRIAL COMMISSION ET AL.

Supreme Court of Wisconsin.

Nov. 11, 1924.

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

Proceeding for compensation under Workmen's Compensation Act (St. 1923, §§ 102.01 to 102.41) by N. J. Casey, employé, opposed by Rock County, employer, and Employers' Mutual Liability Insurance Company, insurance carrier. From judgment affirming award of compensation by Industrial Commission, employer and insurance carrier appeal. Affirmed.Quarles, Spence & Quarles, of Milwaukee (Arthur B. Doe, of Milwaukee, of counsel), for appellants.

H. L. Ekern, Atty. Gen., T. L. McIntosh, Asst. Atty. Gen., and Nolan, Dougherty & Grubb, of Janesville (Paul N. Grubb, of Janesville, of counsel), for respondents.

JONES, J.

The jurisdictional facts in this case are admitted, and the sole point in issue is the question whether the injury, which the plaintiff suffered while being transported to Janesville in the automobile of Mr. Van Hise, occurred in the course of his employment, and was such a hazard of his employment as to justify the award of the commission. The son of the claimant and the foreman of the road work in question, Richard Casey, testified that he hired his father at the rate of 40 cents per hour to work on some highway construction between Janesville and Evansville in the summer of 1923; that his father inquired as to the means of transportation to and from work, and that he had assured his father that the county would provide for that; that he had been in the habit of taking his father to and from work in the county owned car which he drove; that a truck ordinarily took the men to and from Janesville who did not have cars of their own and who did not wish to remain in the camp which was provided at the construction site; that on the night of June 14, 1923, his father had come to him at quitting time, and that he had informed his father that he was not returning to Janesville, and that, as the truck had gone into the city and would not return that evening, he should ride in with Mr. Van Hise; that Van Hise, though not under contract to do such service, had been in the habit of using his own car to take men to dinner, and for just such emergencies as this, upon the request of the foreman or the county commissioner; that gasoline and oil were furnished to Mr. Van Hise and not charged against him in return for such use of his car. The applicant in this case testified to the same facts with respect to the hiring and the request for transportation on the night in question; that he stopped Van Hise as he passed by and told him that his son had told him that he was to ride in with Van Hise; that he did ride in; and that he was injured when Van Hise lost control of the car and it struck a telephone pole, causing the injuries complained of. Mr. C. E. Moore, the highway commissioner for Rock county, corroborated the statement of the applicant, N. J. Casey, with respect to his conversation with Van Hise previous to setting out on the return to Janesville on the night in question. He also testified that he knew of and approved of the informal relations between Van Hise and the county whereby the county called upon Van Hise to use his car in its behalf, allowing him gasoline and oil in return for the use of his car; that the transportation of men to and from the construction work was a part of the employment contract for those who did not desire to camp on the job or use their own cars. Mr. Van Hise testified that the applicant had stopped him on the night in question and informed him that the foreman had said that he should take the applicant with him to Janesville, and that he did so under the belief that he was doing it for the county; that he asked nothing and received nothing from the applicant for the ride; that he was accustomed to do similar services for the county under just such circumstances; that he was reimbursed, not by additional salary, but by being supplied with gasoline and oil in excess of that needed by him for making the journeys undertaken for the county; that he drove carefully on the night of the accident in question, but that a pin in the steering wheel became dislodged in such a way as to take away from him the control of the right front wheel, and that the car was thereby thrown into the ditch on the right side of the road, causing the injuries complained of by the applicant. The appellant in this case is taking the appeal on the ground that the Commission erred in finding the conclusion that the injury arose from a hazard of the employment, asserting that the evidence does not support such a finding, and that the circuit court should have set such a finding aside.

[1] It is one of the claims of the appellant's counsel that the hazard was not peculiar to the employment, but one to which the general public was exposed. It was found by the Commission, and is undisputed, that it was part of the contract of employment that the claimant should be transported to and from...