Eckhardt v. Industrial Commission , 242 Wis. 325 ( 1943 )

The evidence in this case is entirely without dispute and upon that evidence every ultimate finding of the commission, all which are treated by the opinion as findings of fact, is erroneous as matter of law because entirely unsupported by the evidence — just as a finding of a jury without any support in the evidence is erroneous as matter of law. Certainly, a finding of fact of the commission is of no greater force or effect than a finding of fact by a jury.

The opinion of the court entirely ignores the basic undisputable fact that the plaintiff was performing a service for the employer which it was her duty to perform at the immediate time of her injury. The fact is undisputed that at the immediate time she was going to get data to enable her to complete the daily report which she was engaged in making when she arose from that work to go below to get the data. This being undisputably so, every ultimate finding of the commission is on its face erroneous.

The commission found that the applicant when injured, (1) was not performing service growing out of and incidental to her employment. She was performing service growing out of and incidental to her employment just the same as she would have been had she been making out her report in the store below and while so engaged arisen and started for the data and fallen while so going. In the latter case she would unquestionably have been injured while performing service growing out of and incidental to her employment, this whether she was going for the data to some place in the store, or in some other building or upstairs in the same building, or whether she sustained her injury while on the street or going upstairs or in her room upstairs.

(2) The second finding of the commission is that the applicant's injury did not arise out of her employment. Her injury did arise out of her employment. While performing a duty of her employment, at a place where she was authorized to perform it, and at a place where it was to the advantage of her employer that she should perform it she fell and was injured. It makes no difference whether she fell when upstairs or when downstairs or in the street or while going downstairs or while going upstairs, inasmuch as she went to get data to enable her to complete her report, — to finish performance of a particular duty and service required by her employment that she was at the time engaged in performing.

(3) The third finding of the commission is that the applicant was going to work in the ordinary way, but she was not on the premises of her employer. But she was not going to work. She was at her work of making out her daily report. And inasmuch as she was at that work it was entirely immaterial whether when injured she was on her employer's premises or off them.

It is undisputed that the applicant was occupying the apartment for the advantage of the employer who desired her to be there at night as a protection against burglars. Had the applicant been aroused at night by noise below, and in going to the telephone to call the police and fallen as she did in the instant case, she would clearly have been entitled to compensation under the act. With equal reason is she so entitled in the instant case.

All this seems to me a matter of simple and irrefutable reasoning and a common sense construction of the statute. The decision of the court is contrary to a multitude of its prior decisions allowing compensation to employees injured while on a trip in the service of their employer. The doctrine of these cases was applied in Bitker Cloak Suit Co. v. IndustrialComm. 241 Wis. 653, 6 N.W.2d 664. In that case a sales clerk was directed by her employer to call on a customer who had purchased a garment and make inquiry concerning the purchase. In going to the store to her work in the morning she regularly walked from her home to a certain street intersection to take a streetcar downtown. The customer she was to call upon lived aside her regular route to this street intersection. Before reaching the customer's place of residence and the place where the route to the customer's residence deviated from her regular route to the intersection, the applicant fell on the street and sustained an injury. We held that when injured she was engaged in service growing out of and incidental to her employment, and affirmed an award of compensation. The rule of that case should be applied here. To refuse to apply it here is contrary to the liberal application of the statute that this court has uniformly applied in construing and applying the act in order to carry out its plain purpose. In my opinion the judgment of the circuit court should be reversed, with directions to vacate the order of the commission and return the record to the commission with directions to award compensation.

I am authorized to state that Mr. Justice MARTIN concurs in this dissent.