City of Milwaukee v. Althoff, 156 Wis. 68

City of Milwaukee v. Althoff

156 Wis. 68 | Wis. | 1914

BaRNes, J.

Tbe appellant contends that it is not liable for injuries received by one of its employees while on bis way to work; tbat tbe relation of master and servant did not exist when deceased was injured; and that if there is any liability on tbe part of the city it arises out of sec. 1339, Stats.

Sec. 2394 — 4, Stats. 1911, provides for liability for compensation'“Where, at tbe time of tbe accident, tbe employee is performing service growing out of and incidental to bis *71employment.” The material questions in the case are: Did the relation of master and servant exist when the accident occurred ? And, if so, was Althoff performing a service growing out of and incidental to his employment % There is no dispute on the evidence pertaining to these questions and they involve propositions of law rather than matters of fact.

The relation of master and servant may extend beyond the hours the servant is actually required to labor, and in some instances to places other than the premises where the servant is employed. Ewald v. C. & N. W. R. Co. 70 Wis. 420, 36 N. W. 12, 591; Helmke v. Thilmany, 107 Wis. 216, 221, 83 N. W. 360; Pool v. C., M. & St. P. R. Co. 53 Wis. 657, 11 N. W. 15; Kunza v. C. & N. W. R. Co. 140 Wis. 440, 123 N. W. 403.

The courts very generally hold that' the relation of master and servant exists when the servant is under the master’s control and subject to his direction. 5 Labatt, Mast. & Serv. (2d ed.) 5425, § 1806; Harvey v. T. & P. R. Co. 166 Fed. 385; Taylor v. George W. Bush & Sons Co. 6 Pennewill (Del.) 306, 66 Atl. 884; St. Louis, A. & T. R. Co. v. Welch, 72 Tex. 298, 10 S. W. 529; Powers v. Calcasieu S. Co. 48 La. Ann. 483, 19 South. 455.

Such seems to be the holding of the English courts under a substantially similar provision of the English Workmen’s Compensation Act. Sharp v. Johnson, 74 L. J. K. B. 566, 567; Blovelt v. Sawyer, 73 L. J. K. B. 155; Hoskins v. Lancaster, 3 Butterworth’s Workm. Comp. Cas. 476; Fitzpatrick v. Hindley Field C. Co. 3 Workm. Comp. Cas. 37; Lowry v. Sheffield C. Co. 1 Butterworth’s Workm. Comp. Cas. 1; Riley v. Wm. Holland & Sons, 80 L. J. K. B. 814; Holmes v. G. N. R. Co. [1900] 2 Q. B. 409.

In the instant case, when the servant reported to his foreman and received his instructions for the day and proceeded to carry out these instructions by starting for the place where he was to work, we think the relation of master and servant *72commenced, and tbat in walking to tbe place of work tbe servant was performing a service growing out of and incidental to bis employment.

Tbe liability provided for by tbe 'Compensation Act is in lieu of any other liability whatsoever, and tbe remedy under it is exclusive. Sec. 2394 — 4, Stats. 1911. Holding as we do tbat tbe relation of master and servant existed, and tbe parties being subject to tbe Compensation Act, tbe remedy of tbe claimant is under tbat act, and not under sec. 1339, Stats.

By the Gourt. — Judgment affirmed.

Timlin, J., took no part.