Opinion
January 8, 1954 —
February 2, 1954.
APPEAL from a judgment of the circuit court for Dane county: HERMAN W. SACHTJEN, Circuit Judge. Affirmed.
For the appellant there were briefs by Leo W. Slensby, attorney, and Kivett Kasdorf, A. W. Kivett, and David L. Halverson of counsel, all of Milwaukee, and oral argument by Mr. Slensby and Mr. Halverson.
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 respondents William Pessin, Al Urkofsky, and Maryland Casualty Company there was a brief by Moore Prentice of Milwaukee, and oral argument by Raymond J. Moore.
Action by plaintiff, Charles J. Hemans, against the Industrial Commission of Wisconsin, William Pessin, and Al Urkofsky, d/b/a Al Bill's Service Station, and Maryland Casualty Company, for review of the findings and order of the Industrial Commission dismissing plaintiff's application for benefits under the Workmen's Compensation Act. From a judgment confirming the commission's order, plaintiff appeals.
On November 10, 1949, plaintiff was employed at the defendants' service station in Milwaukee. He was working the shift from 3:30 p. m. to 12 midnight. At about 7:30 p. m. a woman customer, Miss Weaver, brought her car in for winterizing service, leaving instructions to deliver the car to the Club Milwaukean where she worked as an entertainer. With instructions to collect payment for the service at the time of delivery, plaintiff drove the car to the club at about 1:30 a. m. He waited there for her until approximately 2:30 and then she drove him back to the station where he showed her the bill for the work done and she found she did not have her billfold. They returned to the club for the billfold but could not get in, and returned to the station. During all of this time the customer expressed a number of complaints about the car and while at the station plaintiff fixed the windshield wiper.
Thereafter, according to plaintiff's testimony, he drove out Lisbon avenue to show her that the car worked all right and they were stopped by a police car for going through a stop sign. He told the policeman that they were going to Green Bay or Appleton or Plymouth; the policeman reprimanded them and left. Miss Weaver wanted to drive but, since she did not have her driver's license with her, plaintiff drove several blocks farther toward the city limits and then she took over the driving. After trying out the car, she decided it was all right and he told her to turn around. While she was looking for a place to turn around the car started "weaving," went off the road, and the accident occurred in which Miss Weaver was killed and plaintiff received the injuries for which he seeks compensation. The time of the accident was approximately 3:30 a. m.; the place was 10 to 12 miles from Milwaukee on Highway 41 just north of Menomonee Falls.
On cross-examination plaintiff testified that he had known Miss Weaver previously, having met her several times at the night club where she worked, having had breakfast with her on several occasions, and having spent part of a day off with her. He denied that he ever "dated" her, but admitted they were friendly and that he had once said she would be a good person to marry if she were younger.
At the time the car was brought into the station Miss Weaver spent about an hour there giving instructions about the service she wanted and when she left she asked plaintiff to buy her a drink. They went across the street and had some drinks together at a tavern. She then left for the club by cab.
Plaintiff testified that Miss Weaver's instructions to Mr. Pessin were to have the car delivered when the station closed. Mr. Roitblat, the attendant working the same shift as plaintiff, testified that the work on the car was done by the time Miss Weaver and plaintiff returned from the tavern, but that plaintiff suggested she leave it and he would wash it; that "as long as he was going to see her later that night anyway he would bring the car back to the Club Milwaukean and she could drive him back to the station to pick up his car." Roitblat stated that at the time of closing the station Hemans gave him the key because it was to be opened at 7 in the morning and there was a possibility of his oversleeping; that "one fellow used to cover up for the other, and in case he was to be a little late I was going to open up." The witness further testified that nothing had been done to the car that would require road-testing.
Although plaintiff knew Miss Weaver made a habit of drinking and he saw her at the bar with other people while he waited for her after she finished her act, he testified that she did not look or act intoxicated. The hostess at the club stated, however, that Miss Weaver had been drinking heavily and that she was drunk that night. Officer Kenneth Roberts, the policeman who stopped plaintiff near the city limits for going through a stop sign, stated that Miss Weaver appeared to be "quite intoxicated," a conclusion he reached because of her impudent attitude. He also testified plaintiff told him he was a filling-station attendant and they were road-testing the car. Roberts advised plaintiff not to go out in the country because the weather was bad, it was snowing and the visibility poor.
The examiner found that at the time of the injury Hemans was performing no service for his employer; that the accident did not arise out of his employment; that he was not entitled to benefits under the Workmen's Compensation Act; and ordered the application dismissed. The commission affirmed the findings and order, stating: "We consider it entirely clear that he was engaged on a mission personal to himself and because of friendship with the passenger in the car in which injury occurred."
Upon review the circuit court confirmed the commission's order.
The only question involved is whether there is credible evidence to sustain the findings of the commission. It is well established that if there is such evidence, the findings will not be disturbed on appeal. Indrebo v. Industrial Comm. (1932), 209 Wis. 272, 243 N.W. 464.
After thorough examination of the record we are of the opinion that it contains ample credible evidence to support the finding that plaintiff was not performing services growing out of his employment at the time he received his injuries.
Plaintiff claimed he was road-testing the car to satisfy the customer that the carburetor was working properly, but the commission was not required to accept his testimony as a verity. It was plaintiff's burden to prove the existence of all facts essential to compensation and if, in the mind of the commission, he failed to do so, it was the commission's duty to deny the application. Dentice v. Industrial Comm. (1948), 254 Wis. 159, 35 N.W.2d 218, and cases there cited.
The invoice recording Miss Weaver's orders regarding the service she desired was in evidence and it contained no indication that a carburetor adjustment was to be made. Roitblat, the attendant who helped plaintiff service the car, testified no motor tune up was made, and that nothing was done to the car which required road-testing.
There was substantial evidence upon which the commission could conclude that at the time of the accident plaintiff was pursuing his own personal interests rather than those of his employer. There was testimony that he and Miss Weaver were personal friends and that on the night of November 10th he had planned to meet her at the club; that it was at his own suggestion that he delivered the car to her.
Further, the fact of Miss Weaver's intoxication, the circumstances of bad weather and driving conditions, the time and place of the accident, all supported the conclusion that plaintiff's purpose in making the trip from the service station to the place of the accident was personal.
Plaintiff contends that the delivery of the car was in the course of his employment and that the provisions of sec. 102.03 (1) (f), Stats., the "traveling salesmen's" statute, were thus applicable to him, giving rise to the presumption that his injuries arose out of the employment. We cannot agree, but even if that were true, the presumption may be overcome by evidence. Hansen v. Industrial Comm. (1951), 258 Wis. 623, 46 N.W.2d 754.
We deem it unnecessary to detail all the evidence presented. That outlined above is sufficient to support the commission's finding that plaintiff was not in the course of his employment when he was injured.
By the Court. — Judgment affirmed.