Whalen v. Buchman
| Decision Date | 04 June 1937 |
| Docket Number | No. 31200.,31200. |
| Citation | 273 N.W. 678,200 Minn. 171 |
| Parties | WHALEN v. BUCHMAN. |
| Court | Minnesota Supreme Court |
Hunt & Palmer, of Duluth, for insurer.
Nelson & Cedergren, of Duluth, for respondent.
On certiorari to the Industrial Commission the employer's insurer seeks to reverse its award of compensation to respondent. The commission found that respondent was in the employ of Bessie Buchman, doing business as Charis of Duluth, when, on February 11, 1935, she suffered an accidental injury which fractured several ribs, the right knee, and inflicted other serious bodily injuries; and that said accidental injury arose out of and in the course of the employment. She was awarded $2,020.95 for hospital, nurse, and medical expenses incurred, and compensation, during disability, in a certain sum.
The assigments of error challenge two findings as being without sufficient support. The first finding so attacked is that respondent was employed by Bessie Buchman when the accidental injury was received. It appears that the Charis Corporation, a Pennsylvania corporation, manufactures corsets. Since April, 1928, ladies in Duluth have been employed to canvass certain territory in Duluth, taking orders for corsets to be made by the Charis Corporation. These canvassers went to a certain building in Duluth wherein the husband of Bessie Buchman had an office, on the door of which was the sign "Charis" of Duluth. He was the manager. Bessie Buchman, his wife, was the fitter. The orders obtained by the canvassers were delivered at that office. Supplies by way of advertisements and blank orders were delivered to the employees by Mr. Buchman at this office, and all canvassers were required to come to the office on certain evenings to receive instructions in respect to the work. Upon the orders, or duplicate given the customer, was a guarantee of work and material of the garment by the Charis Corporation. About a year before the accident, Mr. Buchman left the office in Duluth and thereupon his wife took charge as manager. The canvassers collected enough from the customer when the order was taken to pay the commission the canvassers were to receive. The balance was paid at the office when the garment ordered was delivered. No agreement as between the manufacturer and the Duluth Charis office was shown. But we think on Mrs. Buchman's testimony alone, the commission could well find that she was the employer of respondent when the accidental injury occurred.
The second finding assailed as unsupported by the evidence is this part thereof: "and that said accidental injury arose out of and in the course of said employment." On February 11, 1935, respondent, after supper, walked to Grand avenue and 45th avenue in West Duluth, to take the street car to go to the Charis Duluth office to attend the usual Monday evening meeting. As she was crossing Grand avenue, an automobile struck her, inflicting very serious disabling injuries. There cannot be much doubt that respondent's work, being that of a canvasser, exposed her to hazards, so that had she, while actually engaged in canvassing, been struck by an automobile in crossing a street going from a customer's home on one side of the street to a prospective customer on the other side thereof she would be entitled to compensation. We think all the authorities so hold. The question is whether she could be considered to be canvassing at the time of her injury. She had been so engaged before supper. She stopped at her home for the meal, and then with an order, obtained a few days before, to deliver at the office and to attend the meeting called by the employer, she was struck crossing a public street to take a street car. The statute, Mason's Minn.St.1927, § 4290 (3), provides: Section 31 (4291) has no application here. The part of section 66j (4326(j) here pertinent reads: Under this definition, employees are not under the compensation act when they are not on the premises where the service requires their presence and not during the hours of service. In the case of an employee engaged in canvassing, like respondent herein, there were no hours of service, nor premises designated where her presence was required. We take it that she was in the service whenever she started out on her work to seek customers within the territory assigned to her. It is perhaps not correct to say that she would only be protected against accidental street hazards. It would seem that the Workmen's Compensation Act (Mason's Minn.St.1927, § 4261 et seq., as amended) covers a canvassing employee not only when passing along a public street, but also when walking from the street to and into the house where the customer is to be sought. If the employee should accidentally slip and fall in the house, on the steps or on the walk to the street, and disability resulted, compensation must be paid. The injury would arise out of and in the course of the employment just the same as would that of an employee who slipped and was injured while engaged in his work on the employer's premises during his hours of service.
We have held that when an employee is sent out on an errand to the employer's premises for a certain purpose not within his regular working hours — on an extra job — he is under the protection of the act from the time he leaves his house until he returns. Nehring v. Minnesota Mining & Manufacturing Co., 193 Minn. 169, 258 N.W. 307.
The question here is presented whether or not respondent was under the protection of the act when after supper she started to attend the meeting at her employer's office. Had this been a special errand or an extra job which the employer requested her to do, she would have been under the compensation act from the time she left her home until she returned. This, however, was a trip required of her each Monday evening. It was part of her employment. She received no extra pay therefor. Her pay or wages came solely from the commission secured in her canvassing work and from bonuses. The office of her employer, to which respondent was on the way when injured, was not the place where her canvassing work was done, still it was the place where her presence was...
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