222 Wis. 432 | Wis. | 1936
The following opinion was filed June 22, 1936 :
Upon this appeal the principal question is whether the evidence warrants the commission’s determination that Fay Drew was injured on August 31, 1933, while performing services growing out of and incidental to his employment, within the terms and provisions of sec. 102.03, Stats. It is undisputed that he was in the employment of the Continental Baking Company (hereinafter called the Baking Company) for four years prior to that date, but plaintiffs contend that on the night of his injury he was doing unauthorized acts in an unauthorized way and outside the scope of his employment, although he thought they were for the benefit of his employer; and that, under those conditions, there is no liability under the compensation act.
There is no material conflict in the evidence. Drew was employed as a supervisor by the Baking Company at its branch for the Milwaukee district to supervise the sale and delivery of its products by ten routemen to retail food stores in the city of South Milwaukee and adjacent territory. As is stated in the findings made by the majority of the commissioners, in approving an award reported by an examiner, Drew’s “duties, among other things, were to supervise sales in his territory, to keep the company informed
Drew’s daily work usually began at 7 a. m. and continued until he returned and completed his report at his employer’s Milwaukee plant and offlce at about 4 p. m. However, on the night of the accident, Drew, accompanied by Thiesen, had driven tO' South Milwaukee in Drew’s automobile and attended a meeting held there by the South Milwaukee Retail Food Dealers Association from 8 to 11 p. m., and after that meeting, until midnight, Drew and Thiesen attended a waitress’ birthday party at a restaurant to which Drew had been invited.. The meeting had been called by the association to consider taking action in relation to three dealers who kept their stores open on Sundays. Some of the association’s members, who. were customers of the Baking Company, had asked its routeman, William Schroeder, and also Drew, to stop deliveries to those three dealers, and had threatened to have the association’s members quit taking the Baking Company’s products if those deliveries were not stopped. Drew had reported the matter to L. A. Barrett, who was the Baking Company’s regional manager at Chicago, but was also acting temporarily as its manager at Milwaukee. On August 27, 1933, Barrett, accompanied by Drew and Schroeder, had called on several of the association’s members and one of the dealers who refused to close on Sundays. Barrett, in discussing the matter with the
The Baking Company had two automobiles and a truck, which its supervisors had been told to use when they went out on the company’s business. All of its cars were equipped with governors limiting the speed to thirty-five miles per hour, were covered by proper automobile liability insurance, and were painted for advertising purposes. But Drew used
As there is no substantial dispute as to the material facts, the determination by the examiner and the commission that Drew was injured while performing services growing out of and incidental to his employment was virtually but a conclusion of law, which may be reviewed on appeal “for the purpose of ascertaining whether they support the conclusion of the commission.” Olson Rug Co. v. Industrial Comm. 215 Wis. 344, 345, 254 N. W. 519, citing Tesch v. Industrial Comm. 200 Wis. 616, 229 N. W. 194. Upon such a review, the following facts and conditions are of controlling significance: Drew, at the time of his injury, was returning by the usual route, from a trip which he made primarily for the purpose of attending the association’s meeting in order
In this case there were certainly no such explicit orders by the employer, and such violations thereof as were established in Seaman Body Corp. v. Industrial Comm. 202 Wis. 13, 231 N. W. 251, or in Frint Motor Car Co. v. Industrial Comm. 168 Wis. 436, 170 N. W. 285, and Morgan Co. v. Industrial Comm. 185 Wis. 428, 431, 201 N. W. 738, 740. Nevertheless, in the two cases last cited, the mere fact that the employee had disobeyed the employer’s orders was held not to defeat recovery under the Workmen’s Compensation Act where the injured employee was otherwise acting within the scope of the employment and for the purpose of benefiting or furthering the interests of the employer. On that proposition, those cases and Milwaukee v. Industrial Comm. 160 Wis. 238, 151 N. W. 247; Sheboygan Airways, Inc., v. Industrial Comm. 209 Wis. 352, 245 N. W. 178, 181; and Severson v. Industrial Comm. 221 Wis. 169, 266 N. W. 235, 237, 238 (see also Ex parte Terry, 211 Ala. 418, 419, 100 So. 678), are in point in support of the commission’s award herein. On the other hand, those precedents are not in conflict with the decision in Olson Rug Co. v. Industrial Comm. supra, because it did not appear in that case that the injured employee, who sought compensation, had any duty to perform for his employer in respect to the automobile trip which he was making at the time of his injury, or that he was making that trip for the benefit or in furtherance of the interests of his employer.
Likewise, the fact that Drew, in connection with making the trip primarily for the purpose of attending the meeting, also intended to attend the birthday party after the meeting, did not necessitate holding that he was not performing service growing out of and incidental to his employment at the time he was injured. Barragar v. Industrial Comm. 205 Wis. 550, 555, 238 N. W. 368; Schmiedeke v. Four Wheel
By the Court. — Judgment affirmed.
A motion for a rehearing was denied, with $25 costs, in September 15, 1936.