Scandrett v. Indus. Comm'n

• Decision Date: 07 May 1940
• Citation: 291 N.W. 845,235 Wis. 1
• Parties: SCANDRETT et al. v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

235 Wis. 1

291 N.W. 845

SCANDRETT et al.

v.INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

May 7, 1940.

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

Proceeding under the Workmen's Compensation Act by Leta Cole for the death of Roy J. Cole, employee, opposed by Henry A. Scandrett and others, trustees of property of Chicago, Milwaukee, St. Paul & Pacific Railway Company, employers. From an award of the Industrial Commission granting compensation, the trustees appeal.-[By Editorial Staff].

Affirmed.

This appeal is from a judgment of the circuit court for Dane County entered December 20, 1939, confirming an order of the Industrial Commission dated January 19, 1939, ordering appellants to pay to the respondent Leta Cole certain sums as death benefits because of the death of her husband Roy J. Cole, as the result of injuries sustained while in the employ of appellants.

Roy J. Cole, who lived at Beloit, was employed by the Chicago, Milwaukee, St. Paul and Pacific Railroad Company as a pump repairer. His duties required him to make various repairs in and about the depots of the Company at different parts of the state. In connection with his work, to go from place to place, Cole used a car with the knowledge and consent of his employer. On August 20, 1938, he was ordered by his employer to go to Clinton to make certain repairs in the depot. He arrived at Clinton in the midst of a severe storm and parked his car at the curb in front of the tallest building on the street. During the storm, a part of the roof of the building, blown off by the storm, fell on Cole's car injuring him and resulting in his death five days later.

The commission found that the accident arose out of his employment and ordered the payment of death benefits and the circuit court confirmed this order. The employer appeals.

Bender, Trump & McIntyre, of Milwaukee, for appellants.

John E. Martin, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen. and Arnold, Caskey & Robson, of Beloit, for respondents.

MARTIN, Justice.

Appellants contend that the accident causing the injuries resulting in the death of Cole did not arise out of his employment. Sec. 102.03, Stats., specifies the conditions of liability as follows:

“(1) Liability under this chapter shall exist against an employer only where the following conditions concur:

“(a) Where the employe sustains an injury.

“(b) Where, at the time of the injury, both the employer and employe are subject to the provisions of this chapter.

“(c) Where, at the time of the injury, the employe is performing service growing out of and incidental to his employment. Every employe going to and from his employment in the ordinary and usual way, while on the premises of his employer, shall be deemed to be performing service growing out of and incidental to his employment; and so shall any fireman responding to a call for assistance outside the limits of his city or village, unless such response is in violation of law.

“(d) Where the injury is not intentionally self-inflicted.

“(e) Where the accident or disease causing injury arises out of his employment.

“(2) Where such conditions exist the right to the recovery of compensation pursuant to the provisions of this chapter shall be the exclusive remedy against the employer.

“(3) In the case of disease intermittent periods of temporary disability shall create separate claims, and permanent partial disability shall create a claim separate from a claim for any subsequent disability which latter disability is the result of an intervening cause.”

Appellants concede that conditions (a), (b), (c), and (d) concurred in the instant case, but deny that condition (e) concurred; that is, that the accident causing the injury did not arise out of Cole's employment.

Among other facts, the commission's examiner found that for some years prior to August 20, 1938, deceased had been in the employ of appellant Company and that his duties in such employment necessitated his traveling to different points on appellant's railway system; that deceased maintained his home with his family in Beloit, Wisconsin; that on August 20, 1938, at about 12:45 P. M., deceased left his home in Beloit to go to Clinton, Wisconsin to make some repairs at the railroad station there; that the automobile he was using at the time was his own car, but was being used by and with the knowledge and consent of the Company; that when deceased left Beloit, a storm was raging and it continued until he arrived in Clinton, a distance of twelve to fifteen miles; that upon arriving at Clinton, the storm was of such proportions that it was impossible for him to proceed to the station; that he drove his car in a parking place on the main street; that because of the severity of the storm, he stayed in his automobile, and while sitting there, a portion of a building, in front of which he was parked, blew off, striking his automobile and crushing in the top resulting in the injuries to the deceased which caused his death; that the storm on the day in question was of severe proportions and was general throughout the territory including Clinton as well as surrounding territory; and that no damage of any serious consequence occurred because of the storm, excepting to the building in front of which the deceased parked his car.

From these facts, the examiner concluded that the injury suffered by the deceased on August 20, 1938, was the result of a greater hazard to which he was subjected than was the general public in that his employment by the appellant Company required the use of an automobile in going from place to place as the occasion required, and such employment caused the deceased to be at the particular point where the injury occurred, he having done what a reasonably prudent person could have been expected to do under the circumstances, for otherwise, had it not been for his employment, it can reasonably be assumed that the deceased would have been in a place...