Tyrrell v. Industrial Commission

• Decision Date: 30 March 1965
• Citation: 27 Wis.2d 219,133 N.W.2d 810
• Parties: Mrs. Jean M. TYRRELL, Appellant, v. INDUSTRIAL COMMISSION, De Laval Separator Co., et al., Respondents.
• Court: Wisconsin Supreme Court

Page 810

133 N.W.2d 810

27 Wis.2d 219

Mrs. Jean M. TYRRELL, Appellant, v. INDUSTRIAL COMMISSION, De Laval Separator Co., et al., Respondents.

Supreme Court of Wisconsin.

March 30, 1965.

Bonk, Lutz & Hertel, Chilton, for appellant.

Kluwin, Dunphy, Hankin & Hayes, Milwaukee, Bronson C. La Follette, Atty. Gen., Beatrice Lampert, Asst. Atty. Gen., for respondents.

BEILFUSS, Justice.

Is there any credible evidence or reasonable inference drawn therefrom to support the finding of the Industrial Commission that at the time of the accident the employe, Tyrrell, 'had deviated for a personal purpose and had not returned to the normal route to be used in his work.' Under the familiar rule, if there is such evidence in the record the finding of the commission must be affirmed. ¹

The statute involved is sec. 102.03(1)(f), Stats., which provides:

'Every employe whose employment requires him to travel shall be deemed to be performing service growing out of and incidental to his employment at all times while on a trip, except when engaged in a deviation for a private or personal purpose. Acts reasonably necessary for living or incidental thereto shall not be regarded as such a deviation. Any accident or disease arising out of a hazard of such service shall be deemed to arise out of his employment.'

The material portions of the examiners' findings of fact are as follows:

'* * * that instead of stopping in Iron River where lodging and food were available, the deceased, for personal reasons, deviated from the normal route and frove to Nelma, Wisconsin where he stopped at a tavern for drinks; that there were no accommodations for food or lodging at Nelma; * * * that the deceased had deviated for a personal purpose and had not returned to the normal route to be used in his work; * * *.'

During the week Tyrrell customarily worked at any time when he could see his customers. He was killed within his sakes territory. This is sufficient to raise the presumption that he was working within the scope of his employment. This presumption will continue in the absence of evidence to the contrary. Armstrong v. Industrial Comm. (1948), 254 Wis. 174, 35 N.W.2d 212; Racine County v. Industrial Comm. (1933), 210 Wis. 315, 246 N.W. 303. The presumption is rebuttable and drops out when evidence to the contrary is presented. In armstrong v. Industrial Comm., supra, this court was presented with a comparable factual situation:

'In addition to contentions based upon the facts it is contended by applicant that sec. 102.03(1)(f), Stats.1945 puts upon the employer the burden of proving the fact of deviation from the course of employment. It is further contended that upon the introduction of evidence that deceased was in the service of his employer when last seen applicant is entitled to a presumption that he continued in his employment and that he was so engaged at the time of his death.

'We do not find it necessary to discuss or determine the merits of these contentions because we conclude that even if the burden of proof is upon the employer to show deviation and even though the applicant is entitled to the presumption just referred to, there is evidence to support the commission's finding that decedent at the time of his accidental dorwning was not performing services growing out of and incidental to his employment. It is obvious that evidence sufficient to sustain this burden is sufficient to rebut the presumption. In commenting upon the evidence it should be kept clearly in mind that the commission was not seeking a complete explanation of the circumstances of decedent's death. Had this been the objective it is probably true that such an explanation could only be arrived at by guess. The issue is whether there is substantial evidence that at the time of his death Armstrong had deviated from his employment and was not performing services growing out of and incidental thereto. * * *' (254 Wis. pp. 178-179, 35 N.W.2d p. 214.)

There was no dealer located in or near Nelma. The testimony that Tyrrell intended to go to Armstrong Creek before Crystal Falls is not borne out by the record. Other than the testimony as to his intention, there is no evidence that Tyrrell actually went to Armstrong Creek. There is no evidence which would warrant an inference to that effect.

The examiners' findings are silent as to whether Tyrrell went to Armstrong Creek. The trial court, in its memorandum opinion, determined that Tyrrell did not go there. The court said, however, that even if he had gone there, there would have been a deviation of at least nine miles. Tyrrell would have been traveling west toward Nelma rather than north to Iron River.

The statement in Hansen v. Industrial Comm. (1951), 258 Wis. 623, 625, 46 N.W.2d 754, 755:

'* * * It would seem to follow that if all that can be learned about the injury from the circumstances and from the testimony of individuals would leave the matter within the realm of speculation, then he must be deemed to be within the scope of his employment. The inference arising from the employment controls unless there is evidence which overpowers that inference. * * *' (Emphasis added.)

is 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 independent purpose of his own, or whether he was actuated by an intent to carry out his employment...