Simons v. Industrial Commission
| Decision Date | 05 November 1952 |
| Citation | 55 N.W.2d 358,262 Wis. 454 |
| Parties | SIMONS, v. INDUSTRIAL COMMISSION et al. |
| Court | Wisconsin Supreme Court |
Action by plaintiff Marian Simons against the Industrial Commission, Mineral Point Lumber Company and Lumbermen's Mutual Casualty Company, for review of an order of the Industrial Commission dismissing plaintiff's application for death benefits because of the death of her husband, Ralph E. Simons. The Commission found that the decedent was not within the scope of his employment at the time he received the fatal injuries and denied compensation; the circuit court entered judgment confirming such findings and order, and from the judgment plaintiff appeals.
The facts are undisputed. Decedent was an officer and sales manager of the Mineral Point Lumber Company. It was the practice of the company to send one of its officers to the lumbermen's convention held annually at Milwaukee and it was also the custom that such officer be accompanied by his wife. Ralph Simons was directed by the president of the company to attend the 1950 convention and Mrs. Simons planned to accompany him.
Mr. and Mrs. Simons had two small children. There being no one with whom they could leave the children in Mineral Point, they made arrangements to leave them with Mrs. Simons' parents in Fond du Lac. On the day of the accident, February 13, 1950, they drove from Mineral Point to Madison, then proceeded on Highway 151 toward Fond du Lac, intending to be in Milwaukee that evening. The accident occurred between Madison and Fond du Lac, two miles north of Beaver Dam. Mr. Simons was killed and the others in the car were injured.
Kenneth E. Worthing, Fond du Lac, J. W. Calhoun, Fond du Lac, of counsel, for appellant.
Vernon W. Thomson, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., for respondent.
Appellant contends that the entire trip from Mineral Point to Fond du Lac to Milwaukee was caused by, resulted from and was incidental to the single purpose of carrying out the employer's business. The trial court held that at the time of the accident decedent had deviated from the course of his employment to accomplish a purely personal objective, that of having his wife's parents take care of his children.
The test of deviation is not so much a matter of distance traveled and time consumed in departing from the most direct route, but whose purpose was thus served. Peterman v. Industrial Comm., 1938, 228 Wis. 352, 280 N.W. 379.
Did the decedent deviate from the direct route between Mineral Point and Milwaukee in order to serve his employer, or was his primary purpose that of arranging his personal affairs so that he and his wife could be absent from home during the period of their attendance at the convention?
'The test is whether the servant has stepped aside from the business of his principal to accomplish an independent purpose of his own, or whether he was actuated by an intent to carry out his employment and to serve his master.' Linden v. City Car Co., 1941, 239 Wis. 236, 239, 300 N.W. 925, 926.
Obviously, the employee had to arrange for the care of his children, but in carrying out whatever arrangements he decided upon for the children's care he cannot be said to be performing services growing out of and incidental to his employment.
When an employee agrees to perform services for his employer it is assumed that he will so arrange his personal affairs as to be able to do so. It cannot be said that when he...
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CBS, Inc. v. Labor and Industry Review Com'n
..."usual legitimate things incidental to daily existence." Hansen, 258 Wis. at 626, 46 N.W.2d 754. CBS points to Simons v. Industrial Commission, 262 Wis. 454, 55 N.W.2d 358 (1952) and Tyrrell v. Industrial Commission, 27 Wis.2d 219, 133 N.W.2d 810 (1965), as examples of injuries held noncomp......
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Neese v. State Medical Soc. of Wis.
...whose work required them to live away from home most of the time, were held not to be covered by the act.' Simons v. Industrial Comm. (1952), 262 Wis. 454, 457, 55 N.W.2d 358, 360. In Hansen v. Industrial Comm. (1951), 258 Wis. 623, 626, 46 N.W.2d 754, 755, the purpose of the provision unde......
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Tyrrell v. Industrial Commission
...not appropos. The circumstances here do 'overpower that inference.' The appropriate test has been stated in Simons v. Industrial Comm. (1952), 262 Wis. 454, 456, 55 N.W.2d 358, 360: "The test is whether the servant has stepped aside from the business of his principal to accomplish an indepe......
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Heritage Mutual v. Larsen
...40 Wis. 2d 341, 161 N.W.2d 913 (1968), Tyrrell v. Industrial Comm'n, 27 Wis. 2d 219, 133 N.W.2d 810 (1965), and Simons v. Industrial Comm'n, 262 Wis. 454, 55 N.W.2d 358 (1952), all require reversal as a matter of law. We disagree for a very fundamental reason. The determined facts in each o......