10 N.W.2d 130 | Wis. | 1943
The commission found that the injury arose out of and in the course of his employment. The circuit court held to the contrary.
Appellants contend that there was an issue of fact whether the injury arose out of, and in the course of MacArthur's employment, and that there is credible evidence to support the commission's affirmative finding upon this issue. We *377
cannot agree with this contention. Neither the facts nor the inferences are in any dispute, and the sole question is as to the application of the statute to these undisputed facts and inferences. This is a question of law. It is asserted that this court held to the contrary in Eckhardt v. Industrial Comm.
The question is, (1) whether a traveling salesman, whose work requires him to travel from place to place, whose expenses of travel including hotel bills are fully paid by the employer, but who is given a free choice in the selection of his sleeping accommodations in a territory where usual and ordinary accommodations of the sort that he would enjoy at home are available, is in the course of his employment while taking a bath in a room rented by him at a tourist camp, and (2) whether injuries sustained by slipping upon a bath mat arose out of his employment.
This question has not been directly passed upon in this state and it is a question upon which there is a considerable difference of opinion in the authorities. In Holt L. Co. v.Industrial Comm.
"The employment must establish the limits of the risk. Exactly as the workingman is entitled to his wages, so he should be entitled to indemnity for the injuries sustained in the natural course of his labor. This excludes injuries sustained when off duty and while the relation of employment does not operate upon him by requiring him to do anything or be in a particular place. He then conducts himself according to his own wishes, sets the stage himself, and controls the elements that constitute the hazard."
The State Y.M.C.A. Case, supra, gives the key to the solution of this case. While engaged in traveling the person whose employment requires him to travel is in the course of his employment and if injured by one of the hazards of travel his injury arises out of the employment. The illustrations furnished by appellant are apt. If a traveling salesman, who is shaving with his own razor while in a hotel room, cuts himself, there would be no liability, because the employment did not create the hazard. If, however, the employment required him to shave while riding on the train, and he cut himself because of a jolt, the accident would arise out of the employment.
We are of the opinion that applicant, while occupying his room at the camp was not in the course of his employment, *379
and that in any event, the injury did not arise out of any hazard created by his employment. The applicant had a complete and unrestricted choice of sleeping facilities. Sleeping and making a toilet are not a part of traveling but of living. They are out-of-hours activities in which the employer has no interest and should assume no responsibility unless for some reason connected with the employment he insists upon including them within the employment. This he certainly does by requiring the employee to stay upon the premises. Whether he also does so by designating particular places of lodging we need not and do not decide. In such a case as is here involved, however, the employer evidenced no concern and exercised no control whatever over what applicant did after hours. He made no selection of hotels. He furnished no premises himself. He left applicant complete discretion to select such facilities as suited the latter's taste, and this in a territory where facilities having no more hazards than those of applicant's home were abundant. Under these circumstances we hold with the New York courts in Davidsonv. Pansy Waist Co.
By the Court. — Judgment affirmed. *380