Opinion
October 10, 1958 —
November 5, 1958.
APPEAL from a judgment of the circuit court for Dane county: EDWARD T. FAIRCHILD, Reserve Circuit Judge, Presiding. Affirmed.
For the appellants there was a brief by Toebaas, Hart, Kraege Jackman of Madison, and oral argument by W. L. Jackman.
For the respondent there was a brief and oral argument by Emmet McCarthy of Marinette.
Plaintiff applied to the Industrial Commission for an award of workmen's compensation, and commenced this action in the circuit court to review the commission's order denying his application. The court set aside the commission's order. The employer and its insurance carrier appeal.
Plaintiff Chamberlain was employed by the village of Niagara as its deputy marshal, at a flat monthly salary. His duties involved a regular eight-hour patrol, the investigation of criminal offenses and accidents occurring within the village, and other police services; and he was subject to call at all times.
On May 28, 1954, at about 11:30 p. m. he was hit and severely injured by a runaway automobile while standing on the front porch of Kay's restaurant in Niagara, conversing with one Wicklund, a police officer of Norway, Michigan. The questions before the commission were whether at the time of the injury Chamberlain was performing service growing out of and incidental to his employment, and whether the accident arose out of his employment.
Two weeks earlier a theft of some antenna equipment from the community television antenna had been reported, and plaintiff undertook an investigation of the crime. He spent some time on the investigation nearly every day. Most of the investigation work of the Niagara police was done while the investigator was not on patrol duty. In the course of the investigation, Officer Wicklund of Norway, Michigan, nine miles from Niagara, was notified of the theft.
On the day of the accident, Chamberlain had concluded his patrol shift at 5 p. m. After supper at home he and his wife went to a picture show which lasted until 10 o'clock, and then, accompanied by his wife, he made two rounds of the village in his car, covering practically every street, in accordance with his custom of making an inspection tour of the village during the evenings when he was not on patrol duty. Then the two of them went to Kay's for coffee.
Earlier that day Officer Wicklund at Norway had received information leading him to believe that certain persons had some connection with the theft of the antenna parts in Niagara, and he determined to report such information and the names of the two persons to the marshal or deputy marshal of Niagara. That evening, while on a ride with a friend, he came to Niagara for that purpose.
While Mr. and Mrs. Chamberlain were drinking their coffee in the restaurant, Officer Wicklund entered and accosted plaintiff. There is some conflict in the evidence as to just what was said. The examiner found, and the commission affirmed the finding, —
". . . that without any prearranged appointment, . . . [Wicklund] asked if the applicant would go outside for a minute, and on being informed that the information was private and the fellow officer would rather speak outside the restaurant, the applicant without any further definite information proceeded to leave the restaurant with the fellow officer, and as they entered the porch of the restaurant, the applicant was struck by an automobile."
On the foregoing facts, which were undisputed save in the particular mentioned, the examiner found that the activities of the applicant after 5 p. m. "was not in the furtherance of his duties as deputy village marshal and was purely personal in character." The examiner concluded his findings of fact with the following:
"On the basis of the above facts the examiner concludes that at the time of the applicant's injury he was not in the course of his employment for the respondent and his injury did not arise out of his employment."
The examiner accordingly dismissed the application for workmen's compensation. On petition for review his findings and order were affirmed. Plaintiff thereupon commenced the present action to review the commission's order denying compensation.
The judgment setting aside the commission's order must be affirmed.
We consider that on the undisputed facts, and on the finding of the commission on the one material point of fact in dispute, only one inference is permissible, viz., that Chamberlain sustained his injury while performing service growing out of and incidental to his employment, and the accident arose out of his employment. Therefore only a question of law is presented, and we are not bound by the commission's determination to the contrary, whether it be treated as a finding of fact or a conclusion of law. Schmidlkofer v. Industrial Comm. 265 Wis. 535, 538, 61 N.W.2d 862.
It is undisputed that investigation of the theft of the antenna parts from the community antenna was within Chamberlain's duties as deputy marshal, that he had been actively engaged in that investigation for two weeks, that most investigation work was done after regular patrol hours, that as deputy marshal he was "subject to call to duty twenty-four hours each day," and that Wicklund called Chamberlain out of the restaurant to give him information about the theft, including names of two persons believed to have been involved in it, and was just about to give him this information when the automobile crashed into them.
Receipt of such information was clearly within the scope of plaintiff's duties. It is immaterial that he had not been told, when he accompanied Wicklund out of the restaurant, that this requested conversation related to that particular subject. At the least, he knew that Wicklund was a police officer of a near-by community to which investigations by the Niagara police commonly extended, and when Wicklund called on him and asked him to step outside to receive private information, Chamberlain could reasonably believe that it was information to be imparted to him in his official capacity as police officer and relating to his duties as such. Whatever he thought, the information did in fact relate to the theft Chamberlain was investigating officially, and communication of that information was the sole purpose of the interview which brought the two officers to the place where they were injured. Hence Chamberlain was only doing his duty as deputy marshal when he honored Wicklund's request to step outside to receive information considered "private," and he was performing service growing out of and incidental to his employment at the moment he was injured. Likewise the accident arose out of his employment. Cutler-Hammer, Inc., v. Industrial Comm., ante, p. 247, 92 N.W.2d 824.
The fact that Chamberlain was immediately engaged in the performance of official duty when hurt distinguishes this case from Price v. Shorewood Motors, 214 Wis. 64, 251 N.W. 244, and Fawcett v. Gallery, 221 Wis. 195, 265 N.W. 667. In each of these cases an automobile salesman involved in an accident while on a purely personal pleasure excursion was held to have been acting outside the scope of his employment at the time of the accident, notwithstanding that earlier in the evening he had stopped at a tavern and while there had talked to the bartender about buying a car. Chamberlain was doubtless off duty when he was drinking coffee with his wife, but he was back within his employment when he went outside with Wicklund to receive official information.
The present case is more like Presque Isle v. Industrial Comm. 200 Wis. 446, 228 N.W. 589, where a constable who was out picking berries in the woods with his wife happened to see a fugitive from justice, advanced toward him with gun in hand, and was shot and killed by the criminal. There his death was held compensable, the constable being engaged in performance of his duty when he took steps, while on an otherwise personal mission, to apprehend a law violator.
By the Court. — Judgment affirmed.
MARTIN, C.J., and BROWN and FAIRCHILD, JJ., took no part.