Schroeder & Daly Co. v. Indus. Comm'n of Wis.

• Citation: 173 N.W. 328,169 Wis. 567
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 25 June 1919
• Parties: SCHROEDER & DALY CO. ET AL. v. INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

169 Wis. 567

173 N.W. 328

SCHROEDER & DALY CO. ET AL.

v.INDUSTRIAL COMMISSION OF WISCONSIN ET AL.

Supreme Court of Wisconsin.

June 25, 1919.

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

Application by Paul Toll for compensation under the Workmen's Compensation Law against the Schroeder & Daly Company, the employer, and the Employers' Mutual Liability Insurance Company, the insurer. An award of the Industrial Commission was affirmed by the circuit court, and the employer and insurer appeal. Affirmed.

The applicant, Paul Toll, a salesman in the employ of the Schroeder & Daly Company, was required by his duties to go from place to place in the city of Milwaukee selling produce to grocerymen. On January 31, 1918, while so engaged, and while traveling from one place to another, and while on the public street, he slipped and injured his right leg. Upon application to the Industrial Commission he was awarded compensation. This action was brought in the circuit court for Dane county to review the award made by the Industrial Commission. The circuit court affirmed the award, and from such judgment of affirmance the plaintiffs appeal, the Employers' Mutual Liability Insurance Company being the insurer of the employer.Brown, Pradt & Genrich, of Wausau, for appellants.

John J. Blaine, Atty. Gen., and Winfield W. Gilman, Asst. Atty. Gen., for respondents.

ROSENBERRY, J. (after stating the facts as above).

The only question presented here is whether or not Toll at the time of the injury was performing services growing out of and incidental to his employment. Subdivision 2, § 2394--3, Stats. It is the contention of plaintiffs that the injury sustained by the applicant is one which did not grow out of his employment, but was the result of an ordinary street risk. This contention is based upon the proposition laid down in the McNicol Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306, that the causative danger must be peculiar to the work and not common to the neighborhood, and upon Hoenig v. Industrial Commission, 159 Wis. 646, 150 N. W. 996, L. R. A. 1916A, 339, where it was held that an injury caused by lightning stroke while the applicant was working on a dam, and not exposed by reason of his employment to a hazard peculiar to the industry, or differing from a hazard to which all outdoor workers are exposed, was not one arising out of or incidental to his employment.

The use of the word “peculiar” in this connection is perhaps unfortunate, and not exactly accurate. A hazard peculiar to an industry, as that word is most frequently used, is a hazard which belongs exclusively to that industry. That the word, however, is not used with that meaning in the cases referred to, is plain upon a moment's reflection. It is used rather in the sense of a risk which appertains to the particular industry, or, in other words, a risk which is inseparably connected with it, and so incidental to it. While it is said in the Hoenig Case that the matter turns upon the nature of the hazard, when the statement is taken in connection with the context, it will be seen that the pivotal question...