Selmer Co. v. Industrial Commission

58 N.W.2d 628, 264 Wis. 295, 1953 Wisc. LEXIS 489

• Court: Wisconsin Supreme Court
• Decided: June 2, 1953
• Status: Published

Opinions

Gehl, J.

The employer’s foreman testified that when he received the order to send a man to Briergate farm he directed the employee to go in the latter’s car and that if he finished the work during the day and “it was close to quitting time to go home,” and that he would be credited for an hour of work time “for his transportation cost.”

There was, therefore, an obligation to transport Gillis to his place of work and home and because he was injured while being so transported, his estate is entitled to compensation. Western Fruit Co. v. Industrial Comm. 206 Wis. 125, 238 N. W. 854; West Shore Transport Co. v. Industrial Comm. 258 Wis. 477, 46 N. W. (2d) 203. The situation is no different than it would have been had Gillis used the employer’s car to reach the place of work and, at the direction of the foreman, had driven it to his home; or if the employer had directed the employee to take a bus to his place of work and had agreed to pay his fare to the place of work and to his home. The Gillis car was the instrumentality chosen by the employer for the carrying on of its work and in compliance with the agreement to transport Gillis to the place of work and from there to his home. Rock County v. Industrial Comm. 185 Wis. 134, 200 N. W. 657. In the latter case the county had undertaken to provide transportation for its employees to and from work. Claimant was injured while riding home with a fellow employee who had been in the habit of using his own car when the county’s equipment was unavailable. The claimant had been directed to ride in the fellow employee’s car. The court said (p. 139) :

“Although the county did not own the car, it was an instrumentality used by it in its business and designated to be used on this occasion for carrying out the agreement with the claimant. Although the county was not literally in control of the car when the accident occurred, it did control and exercise the choice of the vehicle to be used. From a legal point of view the liability is the same as if the claimant had been injured while riding in the car generally used for the purpose. If after his day’s work was done the claimant had chosen to ride in the car of some passer-by or a public conveyance having no connection with the county, quite a different question might be raised as to whether at the time of the accident he was performing service growing out of or incidental to his employment. But when the applicant was riding from his place of work to his home in a vehicle which under his contract for transportation was provided for him by his employer, and designated as the one to be used, he was riding as an employee of the county, and the danger was incidental to his employment.”

The fact that in the Rock County Case the claimant was directed to ride in a fellow employee’s car, rather than in his own, does not render the quotation inapplicable. In each of the cases the employer controlled and exercised the choice of the vehicle to be used, and in each claimant was riding from his place of work to his home in a car which, under his contract for transportation, was provided for him and designated by the employer as the one to be used.

Kerin v. Industrial Comm. 239 Wis. 617, 2 N. W. (2d) 223, is cited by the employer as authority for its contention. In that case the court treats the Rock County Case as being in that class of cases “where the employer has agreed to actually transport employees as a part of the contract of employment.” And the court says (p. 622) :

“In such cases the employer determines the means of transportation, the route traveled, the time and place for the employees to assemble for transportation. In such cases the employer has the control of the transportation.”

The court distinguishes the Rock County Case upon the ground that in the Kerin Case it had not been established that there had been an agreement on the part of the employer actually to transport the employee and said, as was the fact in the Kerin Case, that “a mere additional daily allowance to the employee, which he is at liberty to use for board and room at his place of employment or for travel to and from work in the employee’s car, does not extend the compensation so as to cover the employee while commuting to and from his work.” (P. 624.) The court in the Kerin Case was particularly careful to point out that there was no agreement actually to transport employees as a part of the contract of employment. The situation in the instant case is different, however, as we have pointed out. Here there was an express contract to provide the employee transportation to the place of work and to his home.

In the Kerin Case the court called attention to the fact that the commission had found that the provision as to payment of transportation had reference only to transportation at the beginning and end of a job and not for interim transportation. The provision as to payment for transportation in the instant case was that the employer carry the employee to Briergate farm to start the work at that place and upon its completion, if that were accomplished on the same day, to carry him home. It was completed on the same day; he was transported at the end of his job under the employer’s obligation to transport him to his home. There was no obligation for interim transportation; nor was he killed while engaged in interim transportation as was the claimant in the Kerin Case. Had the situation in the Kerin Case been the same as it exists here, the conclusion would undoubtedly have been the same as we find it necessary to be in the instant case.

By the Court. — Judgment reversed and cause remanded with direction to confirm the order of the Industrial Commission.