Summary
In Olson, supra, this court reasoned that the applicant deviated from his trip by stopping at the liquor store, but returned to the purpose by starting the return journey to Blair.
Summary of this case from Sauerwein v. Department of Industry & Human RelationsOpinion
May 4, 1956 —
June 5, 1956.
APPEAL from part of a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit judge. Affirmed.
For the appellants there were briefs by Kivett Kasdorf, attorneys, and A. W. Kivett and Alan M. Clack of counsel, all of Milwaukee, and oral argument by Mr. A. W. Kivett and Mr. Clack.
For the respondent Industrial Commission there was a brief by the Attorney General and Mortimer Levitan, assistant attorney general, and oral argument by Mr. Levitan.
For the respondent James Dahl there was a brief by Fugina, Kostner Ward of Arcadia, and oral argument by LaVern G. Kostner.
Action by Prie S. Olson and his workmen's compensation insurance carrier against the Industrial Commission of Wisconsin and James Dahl to set aside an interlocutory award made by the commission requiring the plaintiffs to make certain payments to Dahl as compensation and medical expenses because of an injury received while in the course of his employment.
It is admitted that the parties were subject to the compensation act; that Dahl was an employee of Olson and that he sustained injuries on September 11, 1952. Olson, among other things, was engaged in the business of grinding, mixing, and selling feed to farmers at Blair, Wisconsin. On the date of the accident Olson directed Dahl to drive a truck from Blair to Claremont, Minnesota, a distance of 100 miles or more, to purchase a load of shelled corn at an elevator there. Dahl left Blair between two and three o'clock in the afternoon and drove directly to Claremont. He took Highway 53 to Galesville, Highway 35 to Winona, and Highway 14 to Claremont. He had made other trips there for the same purpose and he always followed the same route. Dahl arrived at the elevator before six o'clock. About an hour was consumed in weighing and loading the corn and computing the price thereof. Thereafter Dahl and several employees of the elevator procured and drank some beer, of which Dahl had two cans. Sometime later, and probably about 9 p.m., the chief of police of Claremont, who was also a deputy sheriff, entered the municipal liquor store there. The police officer was in uniform. He testified that as he entered the liquor store Dahl turned to the bartender and said, "Throw this man out or I will." The police officer testified that Dahl had been drinking and that there was liquor on the bar in front of the men who were there. Shortly thereafter Dahl and a local man, Marsolic, left the liquor store and started fighting in the street. The police officer separated them and left but they renewed the fight and the police officer placed both of them under arrest for disorderly conduct and started to take them to jail. Marsolic resisted arrest. The police officer told Dahl that he was under arrest and that he would come back after him when he had placed Marsolic in jail. The sheriff of the county had driven in at about that time and parked his car in front of the building that housed the jail. Observing the difficulty, he aided the police officer in putting Marsolic in jail. They were absent about ten minutes and when they returned to, the street Dahl was gone. He had entered his truck and proceeded east from Claremont on Highway 14. After driving about 14 miles east, his truck overturned and Dahl was severely injured.
Two hearings were held before an examiner for the commission and the examiner found that the injury was sustained in the course of and incidental to Dahl's employment for Olson; that the accident causing the injury arose out of the employment; that the injury resulted from the intoxication of Dahl and that pursuant to sec. 102.58, Stats., compensation be decreased 15 per cent. The examiner entered an interlocutory order directing certain payments to be made to Dahl but continuing jurisdiction until the extent of his injuries could be determined. Upon application by both parties for review thereof, the examiner's findings and order were confirmed. The present action was then started, and on November 18, 1955, judgment was entered confirming the order of the commission. Plaintiffs appealed and Dahl moved for a review of that portion of the judgment reducing compensation because of intoxication.
The plaintiffs challenge the finding that Dahl was performing services growing out of and incidental to his employment at the time of his injury. It is their contention that Dahl deviated from his employment when he sought recreation at the liquor store; that there is a presumption of continuity of his personal business and that he was still outside the scope of his employment when the accident occurred; that a person under legal arrest is incapable of entering any sphere of private employment until released by due process of law; that his sole intention upon entering the truck was to escape from the authorities; that the crime of escape is a serious one; and that public policy requires that the perpetrators of crimes should not be compensated for injuries received while committing a crime.
Dahl had deviated from the course of his employment by stopping at the liquor store. The issue is whether he had returned to his duties at the time of his injury. That became a question of fact to be determined by the commission. Nutrine Candy Co. v. Industrial Comm. 243 Wis. 52, 9 N.W.2d 94. The other issues also present questions of fact to be determined by the commission. It is unnecessary to rely upon any presumptions. When injured, Dahl was driving his employer's truck on the direct and usual route from Claremont to Blair. If it be conceded that he had a dual purpose, one to flee from the officer and the other to deliver the corn to his employer's place of business as he had been directed to do, that did not take him outside the scope of his employment. Johnson v. Industrial Comm. 222 Wis. 19, 267 N.W. 286; Continental Baking Co. v. Industrial Comm. 222 Wis. 432, 267 N.W. 540.
In Gimbel Bros. v. Industrial Comm. 229 Wis. 296, 282 N.W. 78, an intoxicated truck driver was fatally injured when he lost control of his truck, and this court said (p. 302):
"If an employee is otherwise acting within the scope of employment, recovery is not defeated because he violated some rule or statute. Continental Baking Co. v. Industrial Comm. 222 Wis. 432, 438, 267 N.W. 540. See Annotation: 23 A.L.R. 1161; 26 A.L.R. 166; 58 A.L.R. 197."
If appellants' contention is followed literally, Dahl might never be able to resume his status as an employee of Olson if the Minnesota authorities failed to proceed further against him. It is a logical inference that the Minnesota authorities will so fail. They released Marsolic, who had compounded his offense by resisting arrest, without preferring formal charges against him. The "serious crime of escape" mentioned by the plaintiff's is a misdemeanor under the provisions of sec. 613.29 of the Minnesota statutes, when applied to the facts of this case.
In addition to the testimony of the police officer as to Dahl's conduct at the liquor store, the sheriff of the county testified that he was notified of the accident and arrived at the scene thereof prior to the time that Dahl was removed to a hospital by ambulance. He smelled liquor on Dahl's breath. In addition thereto the physical facts show that Dahl drove for some distance on the left-hand or north shoulder of the highway. While so driving he struck a shallow concrete spillway designed to carry water from the highway to the ditch. This caused his truck to swerve to the south side of the road and he had succeeded in turning it somewhat to the left when it overturned upon the highway. Dahl contends that the testimony does not warrant the findings by the commission that he was intoxicated and that his injury resulted from his intoxication. He contends that the accident was caused because of a locked front wheel. His own expert testified that some bolt was bent at the time he struck the concrete spillway and that this resulted in a locking of the brake mechanism so that it was impossible for the wheel to revolve. It is fair to assume that he drove on the wrong side of the highway because of his intoxication. No other reason appears therefor. The findings by the commission were fully warranted by the testimony.
By the Court. — Judgment affirmed.