Grant County Service Bureau, Inc. v. Industrial Commission
131 N.W.2d 293
Wis.
1964
Check Treatment

GRANT COUNTY SERVICE BUREAU, INC., Appellant, V. INDUSTRIAL COMMISSION and another, Respondents.

Supreme Court of Wisconsin

October 28—November 24, 1964.

had in the property. It would not have been worth Allied‘s bother or expense to have foreclosed the lien. An action to set aside the deed to Englund would have been futile since Streuly had little or no interest to attach once it was done.

By the Court.—Judgment affirmed.

For the appellant there was a brief by Kenneth M. Orchard of Madison, attorney, and L. James Leitl of Platteville of counsel, and oral argument by Mr. Orchard.

For the respondent Industrial Cоmmission the cause was argued by Roy G. Mita, assistant attorney general, with whom on the brief was George Thompson, attorney general.

For the respondent Shirley Hoadley there was a brief by Morse & Morse of Lancaster, and W. L. Jackman of Madison, and oral argument by Mr. Jackman.

BEILFUSS, J. The plaintiff, the appellant employer, contends that the evidence will not sustain the finding of ultimate fact that the decеased employee was fatally injured while performing services in the course of and incidental to his employment. It argues (1) that the employee was on a “frolic of his own” and that the employee‘s activities were of no benefit to the employer, and (2) that the employee was in wilful disobedience of the employer‘s directions.

Two basic rules of primary concern in appellate review of workmen‘s compensation cases of this type are (1) if the credible evidence or reasonable inferences support the commission‘s findings they are conclusive even though there may be crediblе evidence to sustain a contrary finding.

;
;
;
; and (2) that the workmen‘s compensation statute must be liberally construed in favor ‍​​‌‌​​​‌​‌​‌​​​‌‌​‌​​‌‌​​‌‌‌​‌‌​‌​​​‌​‌​​‌‌​‌​​‌‍of including all services that can reasonably be said to come within the statute.
;
.

The pertinent section of the statute is in part as follows:

”Sec. 102.03 CONDITIONS OF LIABILITY. (1) Liability under this chapter shall exist against an employer only where the following conditions concur: . . .

“(c) 1. Where, at the timе of the injury, the employe is performing service growing out of and incidental to his employment.”

In

, wherein the issue of disobedience of employer‘s orders was considered, we said:

“The plaintiff‘s brief cites

, 23 A. L. R. 1156, and
, as holding that an employee, who engages in an activity in disobedience of an order of his employer, thereby removes himself frоm the course of his employment so as to bar him from workmen‘s compensation benefits if he is injured while so engaged. However, our statute, sec. 102.03 (1) (c), does not require that an injury, in order to be compensable, be ‘within the scope of employment,’ but only that at the time thereof the employee be performing service ‘growing out of and incidental to his employment.’
. Furthermore, we deem that past decisions of this court have pretty well differentiated the type of situation in which disobedience of an employer‘s order will not bar such employee, or his beneficiary, from workmen‘s compensation ‍​​‌‌​​​‌​‌​‌​​​‌‌​‌​​‌‌​​‌‌‌​‌‌​‌​​​‌​‌​​‌‌​‌​​‌‍benefits from the one in which suсh disobedience is held to bar recovery of such benefits. Therefore, it is unnecessary to draw upon the decisions of other jurisdictions for assistance in rеsolving the instant appeal.”

The Martin decision discusses several other disobedience cases. Those allowing recovery are:

;
;
; and
. Two cases denying compensation are:
; and
.

From these cases the rule is adduced that if the disobedient actions were undertaken in furtherance of the employer‘s interests rather than the employee‘s, compensаtion is to be granted. The Radtke and Kosteczko Cases held that the disobedient actions under the facts presented were solely for the employee‘s benefit, no benefit occurred to the employer, and compensation was denied.

From evidence in the record the commission could find that Hoadley, the deceased employee, was attempting to repossess the TV antenna for the benefit of his employer and not for the personal interest to obtain it for himself. The cоmmission could further find as an ultimate fact that Hoadley‘s actions were in the furtherance of the employer‘s interest and as a conclusion of law that hе was performing services growing out of and incidental to his employment.

The employer contends that the employee, in addition to wilful disobedience, violated the rule of the state commissioner of banks1 which subjected the employer to possible loss of its collector‘s license, and ‍​​‌‌​​​‌​‌​‌​​​‌‌​‌​​‌‌​​‌‌‌​‌‌​‌​​​‌​‌​​‌‌​‌​​‌‍that such disobedience and violation should defeat a right to compensation.

The banking department regulation in substance requires the collecting agency to furnish an аgreement to the owner listing the accounts, the date such accounts were received, and rates to be charged and amount to be colleсted. A violation of this order could subject the employer to a loss of license.

It was the practice of the plaintiff employer to “set up” the аccounts to be worked by compliance with this banking department regulation. It appears without dispute that the accounts in question were not “set up” by the employer and that it, in fact, ordered that they not be “set up” but returned to the owner because of the employer‘s belief that the accounts werе uncollectible.

The employer did not know the accounts were secured by conditional sales contracts. Hoadley, upon his own investigation, detеrmined they were and then, unknown to his employer, proceeded to repossess the TV set and antenna in the manner set forth above.

While the repossession of the TV and the antenna by Hoadley was in wilful disobedience to his employer‘s directions and in violation of a strict interpretation of the banking depаrtment rule, the violation of the rule in no way contributed to or caused his injury.2

In

, we stated:

“If an employee is otherwise acting within the scope of employment, recovery is not defeated because he violated some rule or statute.

. See Annotation: 23 A. L. R. 1161; ‍​​‌‌​​​‌​‌​‌​​​‌‌​‌​​‌‌​​‌‌‌​‌‌​‌​​​‌​‌​​‌‌​‌​​‌‍26 A. L. R. 166; 58 A. L. R. 197.”

See also

.

We are of the opinion that there is sufficient credible evidence to support the findings of the commission and that judgment should be affirmed.

We do not reach the question of workmen‘s compensation coverage in those instances where an employee wilfully disobeys an order of the employer based upon the employer‘s

business policy limiting the scope and mеthods of the business as a part of managerial prerogative. The record in this case does not reveal an established business policy on the part of the employer that it would not engage in repossessions.

By the Court.—Judgment affirmed.

HALLOWS, J. (dissenting). When the disobedience of an employee is deliberate and wilful and involves a matter оf business policy falling within the scope of the managerial prerogative and not within the performance of the employee‘s duty, an employee who is injured under such circumstances is not performing services “growing out of and incidental to his employment.” Prior decisions of this court allowing recovery in disobedience cases have involved safety rules or method of performance of an employee‘s duties. This case is not one of an employеr‘s forbidding an employee from going on a roof of a building to recover a television antenna in the course of performing his duties but rather a case whеre the employee in disobedience determined what business his employer should engage in and in performing that business was injured. It matters not in such a case whether the employee thinks he is furthering the employer‘s business. The employee here was, in fact, not furthering the employer‘s business. His manner of “conducting the business” was in viоlation of the rules of the banking commission and of the statutes. In repossessing the television set and antenna the employee violated sec. 122.16, Stats., forbidding household furniture sold on a conditional sales contract from being retaken without legal process. The employer has the right to determine for himself correctly or erroneously what business he will accept and how he will conduct his business. When an employee usurps in disobedience the role of his employer, he no lоnger performs a service growing out of and incidental to his employment.

Notes

1
Secs. 218.04, 218.04 (5), 218.04 (7), Stats.; sec. Bkg 74.02, 1 Wis. Adm. Code.
2
This is not an instance of a violation of a safety rule ‍​​‌‌​​​‌​‌​‌​​​‌‌​‌​​‌‌​​‌‌‌​‌‌​‌​​​‌​‌​​‌‌​‌​​‌‍so as to reduce recovery by 15 percent as provided in sec. 102.58, Stats.