Opinion
No. 177.
Submitted under sec. (Rule) 251.54 May 8, 1974. —
Decided June 4, 1974.
APPEAL from a judgment of the circuit court for Dane county: GEORGE R. CURRIE, Reserve Circuit Judge, Presiding. Affirmed.
The cause was submitted for the appellant on the brief of Edward P. Rudolph of Milwaukee, and for the respondent Department of Industry, Labor Human Relations on the brief of Robert W. Warren, attorney general, and Stephen M. Sobota, assistant attorney general.
Facts.
This appeal arises from a claim for workmen's compensation benefits by claimant-appellant, Barbara Hunter, for injuries sustained in an automobile accident on November 23, 1968.
The appellant was employed by Dunbar-Stanley Studios, Inc., headquartered in Charlotte, North Carolina, as a children's portrait photographer. She resided in Cudahy, Wisconsin, in an apartment provided by the employer and was provided with a company car for travel while on company business. Studio executive vice-president Eugene Hoffman testified that the company's standing instructions were for the appellant to return to the Milwaukee apartment after each road trip. Employees were allowed to use the company cars for incidental and reasonable personal trips, such as visiting churches, movies, restaurants, etc., but permission was required before longer trips could be made. Appellant's work schedule required her to spend Mondays and Tuesdays at the company's studio in Brown Deer and Thursdays, Fridays and Saturdays on a rotating basis at Treasure Island stores in West Allis, Brookfield, Point Loomis, Appleton and Madison. Wednesdays and Sundays were her days off. Hotel bills while appellant was traveling on company business were paid by the employer.
On Wednesday evening, November 20, 1968, appellant drove from Milwaukee to Appleton to spend Thursday to Saturday at the Treasure Island store there. Sunday was a day off, and on Monday she was to work in the Treasure Island store in Brown Deer. On Saturday, November 23, 1968, she completed work about 6:30 p.m. and left the store at about 8-8:15 p.m., after packing her camera gear in the company car and doing some paper work. She was required to complete such paper work concerning the day's photo-taking, including mailing films and expense accounts to the company, by the Saturday night following Saturday work, the accounts and reports to be sent in the next mail.
On the night of the accident, appellant did not drive the company car south toward Milwaukee. Instead she drove the car west from Appleton on U.S. Highway 10. The weather was cold, and rain was falling which was beginning to turn to ice. Appellant stated two reasons for driving west instead of south: (1) She was considering driving to Mosinee to visit a boyfriend and wanted to test the driving conditions; and (2) she had planned a hunting trip for the next day and wanted to test weather conditions to decide whether to participate in the hunting trip. After driving for about a half hour, appellant testified she found driving conditions too hazardous to continue and decided to stop at a motel to spend the night and complete paper work for the company. Proceeding west for another half hour, and reaching a point about 41 miles west of Appleton, she sought to avoid an approaching car and skidded into a ditch, sustaining serious injuries.
On September 9, 1970, a hearing was held before the Department of Industry, Labor Human Relations examiner, Karl W. Paape. On October 16, 1970, the examiner found that there was no employment-related reason for appellant to have been 40 some miles west of Appleton and that her injuries did not arise from her employment, dismissing appellant's claim for workmen's compensation benefits. On January 5, 1971, the examiner's findings and order were affirmed by the department. On February 8, 1971, an action was instituted to review the department's decision. On March 24, 1971, an order to show cause was issued as to why the attorney general should not be enjoined from participating in the review. Following a hearing on April 23, 1971, in a decision dated June 1, 1971, and order dated June 15, 1971, the relief sought by appellant was denied. On June 13, 1972, the circuit court entered judgment affirming the ILHR Department order denying workmen's compensation benefits.
Two issues only are raised on this appeal: (1) Is there sufficient credible evidence to support the department's finding that, at the time of the accident, the appellant was not performing services growing out of and incidental to her employment? and (2) Is it constitutionally impermissible for the attorney general to appear on behalf of a state agency or department in an appeal of a departmental finding or order?
Sufficiency of evidence
. This case involves the application of the "traveling salesmen's statute" — sec. 102.03(1)(f) of the Workmen's Compensation Act of this state. That statute provides than an employee, whose employment requires him to travel, shall be deemed to be performing service growing out of and incidental to his employment while on a trip ". . . except when engaged in a deviation for a private or personal purpose . . . ." It further provides that: ". . . Acts reasonably necessary for living or incidental thereto shall not be regarded as such a deviation . . . ." To deny workmen's compensation recovery, the statute requires that there must be (1) a deviation by the employee from his business trip, and (2) such deviation must be for a personal purpose not reasonably necessary for living or incidental thereto.Whether the appellant here deviated from her business trip is a question of fact for the department to determine. The same is true as to whether any such deviation was for an act of living and was reasonably incidental thereto. The question on review is whether credible evidence or reasonable inferences therefrom support the department's findings of fact on the two points involved. This is not a question of whether there is credible evidence to sustain a finding the department did not make, but whether there is credible evidence to sustain the findings the department did make. While there is a presumption that an employee who sets out on a business trip performs services arising out of and incidental to his employment until he returns from that trip, that presumption can be and is rebutted when evidence to the contrary is presented.
Tyrrell v. Industrial Comm. (1965), 27 Wis.2d 219, 222, 223, 133 N.W.2d 810.
Neese v. State Medical Society (1967), 36 Wis.2d 497, 508, 153 N.W.2d 552.
Hilbert v. ILHR Department (1968), 40 Wis.2d 598, 602, 162 N.W.2d 596.
Lager v. ILHR Department (1971), 50 Wis.2d 651, 657, 185 N.W.2d 300, quoting Unruh v. Industrial Comm. (1959), 8 Wis.2d 394, 398, 99 N.W.2d 182.
Id. at page 658. See, also: James v. Industrial Comm. (1962), 18 Wis.2d 239, 242, 118 N.W.2d 185.
Tyrrell v. Industrial Comm, supra, at page 224. See also: Turner v. Industrial Comm. (1954), 268 Wis. 320, 324, 67 N.W.2d 392; Armstrong v. Industrial Comm. (1948), 254 Wis. 174: 178, 35 N.W.2d 212.
The contrary evidence in the case before us was given by the claimant-appellant. She testified that she drove west from Appleton toward Mosinee to test the weather conditions to determine whether such conditions would permit her to visit a boyfriend in Mosinee or, alternatively, would make feasible her going on a hunting trip the next day. Either of the two stated purposes was entirely personal and had nothing to do with her job or employment. Whether there is a deviation depends upon whether there is established some ". . . meaningful manifestation to engage in activities purely personal to the employee . . . ." The test is whose purpose was served. No purpose of the employer was in any way served by the extended westward highway testing related to either visiting a boyfriend or going on a hunting trip. The evidence is clearly sufficient to allow the department to find that the appellant had deviated for a personal purpose and not for the benefit of the employer.
Tyrrell v. Industrial Comm. supra, at page 226.
Simons v. Industrial Comm. (1952), 262 Wis. 454, 458, 55 N.W.2d 358.
The second question remains whether there is credible evidence upon which the department could conclude that the deviation, although for a personal purpose, was not an act reasonably necessary for living or incidental thereto. This question has been stated by this court to be a matter of whether the actions involved ". . . can be considered usual and proper customary conduct while living away from home." Testing weather and road conditions by a half-hour's driving on a wet and slippery highway either in anticipation of a hunting trip or to see if travel to visit a boyfriend was advisable is not an act reasonably necessary for living or incidental thereto. It would have been far more reasonable to call the sheriff to discover the condition of the highway or weather conditions. Appellant seeks to meet the statutory test of being reasonably necessary for living or incidental thereto by contending that the second half hour of driving was for the purpose of finding a motel in which to sleep and finish her work. But this attempt to divide the westward trip into two compartments disregards the fact that a deviation for personal purposes had already taken place. Looking for a motel or restroom or service station does not alter that fact of deviation. For once deviation is established, the employee must return to his course of employment — here a reasonably direct route between Appleton and Milwaukee or Cudahy — before the time of injury in order that recovery under the Workmen's Compensation Act can be had. Nor is there substance to appellant's contention that by turning into the ditch to avoid a collision she was protecting the employer's car and camera equipment. Such last minute swerving does not alter the fact that the trip, here was made for purely personal reasons and was not reasonably necessary for living or incidental thereto. Ample credible evidence undergirds the department finding on this point. Participation of attorney general
Neese v. State Medical Society, supra, at page 506.
Tyrrell v. Industrial Comm., supra, at page 226, citing Employers Mut. Liability Ins. Co. v. Industrial Comm. (1939), 230 Wis. 670, 284 N.W. 548.
Of the statutory requirement, contained in sec. 102.23(1), Stats., this court has made clear that the ILHR Department is a real, not nominal, party in interest, stating: ". . . it was clearly the legislative intention to have the commission be a real party in interest, and not a mere nominal party, even though it is not financially interested in the outcome of the litigation. . . ." Such legislative intention, and the public purpose to be served thereby, is made clear in the report of the legislative committee which drafted the Workmen's Compensation Act, back in the 1911 legislative session. The committee stated: ". . . The object of having the action to review brought against the board is twofold: (1) any error is made it will be an error made by the board, the fraud of the board that may be subject to review. Consequently, the board should defend its own action, and this will be done at the expense of the state. (2) To relieve the party in whose favor the award was made of the expense of litigation in the circuit and supreme courts. . . ." While the question of appropriate public policy was and is for the legislature to determine, we find no constitutional infirmity in the provision that a petition for review of an order or award is to be brought against the department that entered the order or made the order that is to be judicially reviewed. The provision that the department be a party in interest on judicial review of its order or award has been an integral part of the administration of workmen's compensation in this and other states for over a half century. The attack upon its constitutionality is not only somewhat delayed, but also entirely without basis.
Rathjen v. Industrial Comm. (1940), 233 Wis. 452, 457, 289 N.W. 618, cited with approval in Holley v. ILHR Department (1968), 39 Wis.2d 260, 264, 268, 158 N.W.2d 910.
Report of the Special Committee on Industrial Insurance, Wisconsin Legislature (1911), 28. See also: Fagan, Leave the Workmen's Compensation Law Alone!, 42 Wis. Bar Bull. (No. 6, December, 1969), 30.
3 Larsen, Workmen's Compensation Law, p. 354.64, sec. 83.19, stating: ". . . In a large proportion of the major compensation states, including California, New York, Wisconsin and others, a commission whose award is appealed becomes a party to the appeal, defending its award. . . ."
With the requirement upheld that the department be named as defendant in an action for circuit court review, little remains of the challenge to the attorney general being statutorily named to represent the department on such review and upon appeal to this court. The legislature has named the attorney general as the attorney for the department upon review and appeal. The policy to be followed in this regard is for the legislature to decide, but it is difficult to conceive of reasons for the requirement that private counsel be retained or some other arrangement made for legal representation of the department when it is named as defendant in a petition for court review of its order or award. Appellant sees this as resulting in the providing of public counsel for a private party litigant, but this misapprehension of the role of the attorney general on review or appeal was answered, back in 1918, when this court held: "True, the Industrial Commission is also a party defendant and the law requires the attorney general to appear for the Commission in the circuit court and in this court. It is true also that in defending the award for the Commission he necessarily defended the interests of the claimants, but nowhere does the statute make him their attorney; on the contrary the statute expressly says that he shall appear `on behalf of the commission.' . . ." The statute (sec. 102.23(1)) requiring that a petition for judicial review of a department order or award in workmen's compensation cases and the statute (sec. 102.64(3)) requiring the attorney general to represent the department in such review are upheld, and the challenge to their validity is rejected.
Frontier Mining Co. v. Industrial Comm. (1918), 168 Wis. 157, 158, 169 N.W. 312.
By the Court. — Judgment affirmed.