Schmiedeke v. Four Wheel Drive Auto Co.

| Wis. | Apr 5, 1927

Owen, J.

That the relation of employer and employee between Schmiedeke and the Four Wheel Drive Auto Company existed by reason of the contract of employment, and that both were subject to the provisions of the workmen’s compensation act, is conceded.

We take it to be well settled that the risks of automobile travel constitute a hazard growing out of and incidental to the employment of a salesman traveling by automobile. Such is the effect of the holdings in Schroeder & Daly Co. v. Industrial Comm. 169 Wis. 567" court="Wis." date_filed="1919-06-25" href="https://app.midpage.ai/document/schroeder--daly-co-v-industrial-commission-8192872?utm_source=webapp" opinion_id="8192872">169 Wis. 567, 173 N. W. 328, and U. S. Cas. Co. v. Superior H. Co. 175 Wis. 162" court="Wis." date_filed="1921-10-18" href="https://app.midpage.ai/document/united-states-casualty-co-v-superior-hardware-co-8193469?utm_source=webapp" opinion_id="8193469">175 Wis. 162, 184 N. W. 694, that street hazards to which ordinary salesmen on foot are subjected are hazards peculiar to the employment. Accidents of this kind have almost universally been held to be compensable. Capital P. Co. v. Conner, 81 Ind. App. 545" court="Ind. Ct. App." date_filed="1924-06-06" href="https://app.midpage.ai/document/capital-paper-co-v-conner-7069480?utm_source=webapp" opinion_id="7069480">81 Ind. App. 545, 144 N. E. 474; New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682" court="Ga. Ct. App." date_filed="1923-08-24" href="https://app.midpage.ai/document/new-amsterdam-casualty-co-v-sumrell-5615410?utm_source=webapp" opinion_id="5615410">30 Ga. App. 682, 118 S. E. 786; Cook’s Case, 243 Mass. 572" court="Mass." date_filed="1923-01-11" href="https://app.midpage.ai/document/cooks-case-6436070?utm_source=webapp" opinion_id="6436070">243 Mass. 572, 137 N. E. 733; Industrial Comm. v. Pueblo Auto Co. 71 Colo. 424" court="Colo." date_filed="1922-06-05" href="https://app.midpage.ai/document/industrial-commission-v-pueblo-auto-co-6568876?utm_source=webapp" opinion_id="6568876">71 Colo. 424, 207 Pac. 479; Empire H. & A. Ins. Co. v. Purcell, 76 Ind. App. 551" court="Ind. Ct. App." date_filed="1921-11-02" href="https://app.midpage.ai/document/empire-health--accident-insurance-v-purcell-7068740?utm_source=webapp" opinion_id="7068740">76 Ind. App. 551, 132 N. E. 664. Appellants do not question the correctness of the decisions in Schroeder & Daly Co. v. Industrial Comm. 169 Wis. 567" court="Wis." date_filed="1919-06-25" href="https://app.midpage.ai/document/schroeder--daly-co-v-industrial-commission-8192872?utm_source=webapp" opinion_id="8192872">169 Wis. 567, 173 N. W. 328, and U. S. Cas. Co. v. Superior H. Co. 175 Wis. 162, 184 N. W. 694, but they say that in all such cases it is incumbent upon the applicant to show that at the time of the accident the employee was engaged in the master’s business. They contend that the evidence in this case justifies the finding of the Commission that at the time of the accident Schmiedeke was not within the scope of his employment. That we conceive to be the only question calling for our consideration. We approach it conscious of the fact that if it be a question of fact and there is any evidence to support the finding of the Commission, such finding cannot be disturbed.

It is an undisputed fact that Schmiedeke left Clintonville Monday morning for the purpose of canvassing his territory; that he left under instructions from his employer to be at the office of the employer the following Monday morning for the purpose of accompanying the sales manager of the employer to Ironwood, Michigan, on the business of the company. His return to Clintonville was in obedience to these instructions. It may be that during the week he had not been attentive to the employer’s business. It may be that-at times he was in the prosecution of his own business. However this may be, the record establishes the fact without controversy that at least a period of his time was devoted to the business of his employer. It cannot be disputed that the trip was undertaken for the purpose of promoting the interest of the employer. It cannot be denied that the trip contemplated a departure from Clintonville and a return to Clintonville. Even though he had departed from the employer’s business at times during the week, the most that can be said is that he was acting indiscriminately in the prosecution of his own business and that of his employer. Certainly he was engaged in the employer’s business on Friday and Saturday. In obedience to the employer’s instructions he was to be at the office in Clintonville Monday morning. The time of making the trip was unimportant. It seems apparent that, whenever the trip was undertaken, he was clearly within the scope of his master’s employment while on his return. The trip for the week was an entity. It included going and coming. Even though at times during the week he departed from the scope of his employment, upon his return trip to Clintonville' for the purpose of reporting to the office pursuant to his instructions he was again within the scope of his employment.

A contention is made that the deceased was intoxicated at the time of the accident and had been on a “spree.” The Industrial Commission made no such finding, and the contention is based on circumstances which give rise only to a suspicion that such might have been the case. It is based upon the testimony of witnesses who saw and talked with Schmiedeke Sunday evening. These witnesses, however, testified that he did not appear to be intoxicated, that they did not see him take a drink, and that they did not smell liquor on his breath. It seems unnecessary for us to consider the case upon the assumption that Schmiedeke was intoxicated at the time of the accident.

We hold as a matter of law that the deceased was within the scope of his employment at the time of the accident, and that the award of the Commission was properly vacated and set aside by the circuit court.

By the Court. — Judgment affirmed.