Severson v. Industrial Commission

266 N.W. 235, 221 Wis. 169, 1936 Wisc. LEXIS 338
CourtWisconsin Supreme Court
DecidedMarch 31, 1936
StatusPublished
Cited by15 cases

This text of 266 N.W. 235 (Severson v. Industrial Commission) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Severson v. Industrial Commission, 266 N.W. 235, 221 Wis. 169, 1936 Wisc. LEXIS 338 (Wis. 1936).

Opinion

Martin, J.

Sam and Albert Severson, as copartners, operated a farm and a fleet of milk trucks. They employed seven or eight truck drivers, who, in addition to hauling milk, did general farm work. They were paid by the month, and received room and board at the farm. Although driving a [171]*171milk truck was ordinarily a one-man job, it was customary for the drivers to go along to assist other drivers at times, which practice was known to the Severson brothers, who tacitly approved of it.

The truck drivers had their own routes, and usually collected milk from the farms on their respective routes in the morning and evening, delivering the milk to the White House Milk Company plant in the city of Manitowoc. Kenneth Aubel had his own designated milk route, and had been employed as a truck driver by the Severson brothers for approximately two years prior to August 2, 1933. On that date he was informed by his employers that his evening route had been temporarily discontinued. It appears that one William Berg, one of the truck drivers who was required to cover his route on the evening of August 2d, requested Aubel to go along and assist him. Albert Severson, one of the employers, heard this conversation, and thereafter told Aubel to see some farmers on his route to inform them that there would be no collection that evening and also- to deliver some test bottles.

It appears that Aubel left the Severson brothers’ farm in his own car, accompanied by another truck driver by the name of Peterson. After he had called on some of the farmers on his route for the purpose indicated, he joined Berg, and Peterson drove Aubel’s car back to the Severson farm. From the point on Berg’s route where he was joined by Aubel, it appears that they collected milk at seventeen farms, Aubel assisting in loading it on the Berg truck. When they finished collecting the milk, they drove on the main highway to Mani-towoc. While en route to the White House Milk Company plant the Berg truck ran into a ditch and Aubel was killed.

It is the contention of respondents that Aubel was merely performing a personal courtesy, and was not within the scope of his employment when the accident occurred. The Industrial Commission found:

“The drivers occasionally helped one another to the knowledge of the respondents; that both Kenneth Aubel and Wil[172]*172liam Berg were in the employ of the respondents under a contract of hire and at the time of his fatal injury Kenneth Aubel was assisting a coemployee and performing service for the respondents.”

From the facts found, the examiners concluded that at the time of his fatal injury Kenneth Aubel was an employee of the respondents within the meaning of the Workmen’s Compensation Act, and was performing service growing out of and incidental to his employment. Upon the petition for review of the examiners’ findings, in affirming the findings and order of the examiners, the commission said:

“The first question which arises uppn the petition for review of the examiners’ findings may be briefly stated as follows : An employee, following conclusion of his own service for the day, at the request of a coemployee, assists the latter in completing his work. The employer has knowledge of similar action upon previous occasions. Is the employee who assists engaged in performing service growing out of and incidental to his employment ? The commission believes that the answer must be in the affirmative. Generally speaking, the service that one employee renders to another, unless an express prohibition has been promulgated, is to be considered service reasonably incident to that of the assisting employee. Certainly that is true where, with knowledge of the employer, the practice of assistance is continued without remonstrance on the employer’s part.”

Sam Severson, one of the employers, testified that the drivers helped one another. He was asked: “Did you know that they were doing that? A. Yes, we knew that.

“Q. Did you ever make any objections to that practice? A. No.”

Asked whether he encouraged that practice, he replied: “Well, not necessarily,” but he “knew they were doing it.”

Albert Severson, the other employer, was asked: “Will you state whether or not it was the duty of one man to help1 another? A. Well, we liked to have them do that if they could, [173]*173but Unless it was absolutely necessary, we didn’t instruct them to do so.”

He further testified: “Q. And on those evenings when some driver or other would not make his route, he would accompany some other driver? A. Yes.

“Q. And you knew it was a practice among these drivers to help one another? A. Yes.”

As the testimony of the employers clearly indicates, Aubel was injured while performing a service which, while under no absolute duty to perform, it was the type of duty which had the approval of the employers. He was performing an “expected” service rather than a “required” duty.

In Sheboygan Airways, Inc., v. Industrial Comm. 209 Wis. 352, 245 N. W. 178, which involved the question of whether a pilot, who was killed upon the falling of an airplane in which he was carrying two passengers, was acting within the scope of his employment, the court held that the question was one of fact for the Industrial Commission, and remanded the cause for further proceedings. There the court, quoting from Radtke Bros. & Korsch Co. v. Rutzsinski, 174 Wis. 212, 217, 183 N. W. 168, said:

“ ‘Where a claimant . . . does acts different in kind from what he is expected or required to- do, which are forbidden and outside the range of his service, he cannot recover.’ ”
However, the court further said: “Of course, that rule is not applicable when an employee, in furtherance of his employer’s interests and not merely to further his own personal ends, commits some acts of disobedience as in Frint Motor Car Co. v. Industrial Comm. 168 Wis. 436, 170 N. W. 285.”

In the Frint Motor Car Co. Case, supra, the claimant, a mechanic, was given charge of his employer’s pit at automobile races, with instructions to work on the cars there and not to leave the pit. Contrary to orders, he left the pit and stood upon the fence at the inside of the race track. While there, during a race, he saw one of his employer’s cars stop on the [174]*174track a short distance away. He ran toward it, but before reaching it was struck by an oncoming car and killed. It was there held that he was at the time performing service growing out of and incidental to his employment, and that the mere fact that he had disobeyed orders did not preclude an award of compensation for his death. See cases cited at page 439.

Morgan Co. v. Industrial Comm. 185 Wis. 428, 431, 201 N. W. 738, involved a situation where a woman hired to work in a factory was told to sweep the floor of a room. After finishing her sweeping, she put the waste matérial through a cut-off saw, and in so doing sustained fatal injuries. There was evidence that it was customary to put the waste material through the cutting machine, and while there was testimony that the deceased was not expected to run the machine, there was no evidence that she had been forbidden except in one instance.

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Cite This Page — Counsel Stack

Bluebook (online)
266 N.W. 235, 221 Wis. 169, 1936 Wisc. LEXIS 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/severson-v-industrial-commission-wis-1936.