Ætna Life Ins. Co. v. Schmiedeke

Citation213 N.W. 292,192 Wis. 574
PartiesÆTNA LIFE INS. CO. ET AL. v. SCHMIEDEKE ET AL.
Decision Date05 April 1927
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Dane County; August C. Hoppmann, Judge.

Action by Myrene M. Schmiedeke against Ætna Life Insurance Company and others, to review an order of the Industrial Commission dismissing plaintiff's application for compensation for the death of her husband. From a judgment vacating and setting aside the order and remanding the record to the Industrial Commission with directions, the named defendant and another appeal. Affirmed.--[[[By Editorial Staff.]

Action to review an award of the Industrial Commission. On the 13th day of October, 1924, one A. W. Schmiedeke was, and for some time prior thereto had been, in the employ of the Four Wheel Drive Auto Company of Clintonville, Wis., as one of its traveling salesmen. He was allotted certain territory in Northern Wisconsin, and it was his duty to travel that territory and to make sales of auto trucks manufactured by the employer. He traveled by auto provided by himself.

It appears that on Monday, October 13th, he left Clintonville and traveled north into his territory. It seems that during the week he made his headquarters at Pelican Lake. Just what his activities were during the week are not made clear. He did not make customary daily reports to the company. A number of witnesses testified to having seen him at and in the vicinity of Pelican Lake. But the testimony of such witnesses accounts for his activities for very brief periods of time during the week. There is some evidence from which it may be inferred that during the week he was devoting a portion of his time at least to promoting sales of real estate in the vicinity of Pelican Lake. However, we do not regard it as very material whether he was steadily engaged in promoting his employer's business during the week.

The evidence does show, with great certainty, that Schmiedeke was at Crandon on Friday and Saturday, about 20 miles from Pelican Lake, endeavoring to consummate the sale of a truck to the city of Crandon, and during such days interviewed various aldermen of the city of Crandon. As late as 4 o'clock Saturday afternoon he interviewed an alderman of that city. His presence is not accounted for from that time until 10 o'clock Sunday morning, when he was seen at Pelican Lake. The record is silent concerning his whereabouts or activities from that time until Sunday evening, when he was again seen at Pelican Lake. At 7 o'clock Sunday evening he called at a garage in Pelican Lake and visited with the proprietor of the garage until late in the evening. He told the proprietor of the garage that he had to go back to Clintonville that night. As the proprietor of the garage contemplated taking the train at Pelican Lake and going to Green Bay that night for the purpose of taking a train to Detroit, Schmiedeke urged him to go to Clintonville with him and take a bus from Clintonville to Green Bay the following morning. However, this arrangement was not acceded to. Around 10 o'clock in the evening, Schmiedeke started from Pelican Lake to Clintonville, driving his Ford coupé. We next hear of his presence at Elcho, a town about 6 miles distant from Pelican Lake, between 11 and 12 o'clock at night. He was having trouble starting his car. One Frank Sinkler came to his assistance and started the car without difficulty. Schmiedeke told him he was going to Clintonville, and asked him to drive him to Clintonville. Sinkler urged him to stay at Elcho and not attempt to drive to Clintonville, but Schmiedeke insisted that it was necessary for him to proceed to Clintonville. Finally Sinkler consented to drive him as far as Antigo. Just before reaching Antigo, while Sinkler was driving, the car overturned, and Schmiedeke sustained serious injuries. He was taken to the hospital at Antigo, and died in a few days from traumatic pneumonia. His widow made claim for compensation. The Industrial Commission found that at the time of the injury Schmiedeke was acting without the scope of his employment and denied compensation. The circuit court vacated and set aside the order of the Industrial Commission and remanded the record to the commission, with directions to make an award in favor of the widow. From that judgment the employer and the insurance carrier bring this appeal.Quarles, Spence & Quarles, of Milwaukee (Arthur B. Doe, of Milwaukee, of counsel), for appellants.

Eberlein & Larson, of Shawano, for respondent Schmiedeke.

John W. Reynolds, Atty. Gen., and Mortimer Levitan, Asst. Atty. Gen., for respondent Industrial Commission.

OWEN, J.

That the relation of employer and employé between Schmiedeke and the Four Wheel Drive Auto Company existed by reason of the contract of employment,...

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