U.S. Cas. Co. v. Superior Hardware Co.

• Decision Date: 18 October 1921
• Parties: UNITED STATES CASUALTY CO. v. SUPERIOR HARDWARE CO.
• Court: Wisconsin Supreme Court

175 Wis. 162

184 N.W. 694

UNITED STATES CASUALTY CO.

v.SUPERIOR HARDWARE CO.

Supreme Court of Wisconsin.

Oct. 18, 1921.

Appeal from Superior Court, Douglas County; Solon L. Perrin, Judge.

Action by the United States Casualty Company against the Superior Hardware Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded and new trial granted.

One Louis Stern, a city salesman of the Eimon Mercantile Company of Superior, Wis., was injured by an automobile truck. Upon due proceedings had before the Industrial Commission the amount of compensation and medical expenses under the Workmen's Compensation Act was determined to be $3,144.92. Such sum was paid on behalf of the employer by this plaintiff, its insurer. Suit was thereupon brought by the plaintiff as succeeding to all the rights of the injured person against the defendant on account of such accident.

Mr. Stern was employed to go from customer to customer along the streets of the city of Superior to solicit orders. Ogden avenue runs north and south in said city and is intersected by Broadway, running east and west. Mr. Stern left his home on the morning of September 26, 1919, according to custom, and went west on the south side of Broadway, and before reaching the center of Ogden avenue was struck and carried or pushed some distance to the south and near to the east curb of Ogden avenue; the specific negligence here relied upon being the running by the auto truck to the left of and beyond the center of Ogden avenue in making the turn from the west to the right and south at the time of colliding with Mr. Stern, and therefore in violation of section 1636--49b, Stats., which reads as follows:

“1. * * * Any such person so operating a motor vehicle shall, at the intersection of public highways, keep to the right of the center of such intersection of such highway when turning to the right. * * *”

Subsection 2 provides for a penalty by fine or imprisonment for a violation of the foregoing provision.

When plaintiff rested the court granted defendant's motion for a nonsuit. This upon two grounds: First, that under the situation disclosed Mr. Stern was not within the terms and conditions of the Workmen's Compensation Act (St. 1919, §§ 2394--1 to 2394--95), so as to be entitled to compensation from the employer for any such injury, and for that reason the plaintiff had no right of action; secondly, that it had not been made to appear that there was any actionable negligence in the operation of the car.

The plaintiff thereafter moved for a new trial, the motion was denied, and judgment was thereupon ordered in favor of the defendant dismissing the complaint upon the merits. From such judgment plaintiff has appealed to this court.

Steele & Tipton, of Superior, for appellant.

Pickering & Rieser, of Superior, for respondent.

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

Mr. Stern's duty did not require him to go first to his employer's place of business before starting out to make the rounds of his customers in the city, and he had no other present objective in view while crossing Broadway and Ogden avenue at the time of the accident than the visit to his prospective first customer, whose place of business was on Broadway about a half a block west of the place of accident.

To entitle him to compensation from his employer under the provisions of section 2394--3 (2) it must be shown that at the time of the accident “the employé is performing service growing out of and incidental to his employment.” That such a city salesman, injured by an accident attendant upon his being upon the highway while soliciting orders for his employer, is so entitled to such relief has heretofore been declared by this court (Schroeder & Daly Co. v. Ind. Com., 169 Wis. 567, 173 N. W. 328), and under the ruling in that case this plaintiff's right to compensation would be beyond question if, at the time of the accident, he had reached a point in his daily journey beyond the...