Summary
applying Wis. Stat. § 102.03(f) to a car salesman traveling to attempt to sell car to customer after hours
Summary of this case from Brown v. Muskego Norway Sch. Dist. Grp. Health PlanOpinion
No. 246.
Argued March 2, 1971. —
Decided March 30, 1971.
APPEAL from a judgment of the circuit court for Dane county: WILLIAM C. SACHTJEN, Circuit Judge. Reversed and remanded.
For the appellants there was a brief and oral argument by Robert Zum Brunnen of Spooner.
For the respondent Department of Industry, Labor Human Relations the cause was argued by James P. Altman, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
For the respondents Arrowhead Pontiac-Buick, and Universal Underwriters Insurance Company there was a brief and oral argument by Dennis C. Bailey of Spooner.
This is an appeal from a judgment affirming an order of the Department of Industry, Labor Human Relations dismissing an application for death benefits under the Workmen's Compensation Act.
Arthur I. Lager was killed when he was struck by an automobile on the night of April 4, 1968. He is survived by a mentally incompetent wife, Lucille Lager, and two minor dependents, Constance K. Lager and Richard Stubbe.
The application for workmen's compensation benefits was made on behalf of these survivors against Arrowhead Pontiac-Buick, Inc., and its insurer, the Universal Underwriters Insurance Company. Arrowhead Pontiac-Buick, Inc., was an automobile dealership wholly owned by Orell Danger and located in the city of Spooner.
A hearing on the application was held by a department examiner, who made findings of fact and ordered Arrowhead and its insurer to pay death benefits to the claimants. On review, the department made its own findings of fact and concluded that the deceased was not in the course of his employment and ordered that the application for death benefits be dismissed.
Upon proceedings to review in the circuit court for Dane county, a judgment was entered confirming the department's order and dismissing the application.
Most of the facts are undisputed. The deceased had been an automobile salesman for Arrowhead for over a year prior to his death and had been an automobile salesman in the northern area of Wisconsin for over thirty-five years. His job required him to travel around the Spooner area in search of prospective buyers. It was undisputed that his work frequently required him to visit potential customers during the evening after the customers' ordinary work hours.
In the late afternoon of April 4, 1968, deceased returned to the Arrowhead garage in Spooner after a day of selling. He told his employer, Orell Danger, that he planned to go to the Earl-Springbrook area that evening in an attempt to sell a 1967 Ford automobile. The deceased did not give the name of the prospect whom he intended to visit that evening. When he left the garage shortly before 6 o'clock, he was driving that 1967 Ford. Orell Danger testified that Lager was permitted to use automobiles only in the course of his employment and not for personal or social use.
After leaving the garage, the deceased went to the home of Joyce Stubbe, with whom he lived. Prior to dinner, he had two cocktails and then left the house at about 6:50 p.m., after telling Joyce Stubbe that he was going out on business on a car deal. He used the 1967 Ford, although Joyce Stubbe testified that he had another automobile that belonged to Arrowhead which he was permitted to use for personal trips. She testified that this other automobile was frequently parked in the roadway in front of the house.
Lager was next seen at 7:30 p.m. in a tavern, approximately forty minutes after he left the home of Joyce Stubbe. He did not state that he had been in the Earl-Springbrook area prior to the time he arrived at the tavern. Earl and Springbrook are two small villages located northeast of Spooner. Orell Danger testified that the best route to go from Spooner to Earl-Springbrook is to follow State Highway 53 north and then turn east on State Highway 63. Following that route, a motorist first would pass through Trego on Highway 63, then Earl, and then Springbrook. It was about eight miles from Spooner to Trego, another three or four miles from Trego to Earl, and another four miles from Earl to Springbrook. There seems to be no dispute with the hearing examiner's finding that the total distance from Spooner to the Earl-Springbrook area was 12 to 15 miles. The tavern where the deceased stopped is on the direct route that a motorist would follow in going from Spooner to Earl-Springbrook and in returning.
There was evidence that the roads were in good condition and that it was well within the realm of physical possibility for the deceased to have gone to the Earl-Springbrook area and then returned to the tavern by 7:30, or forty minutes after he left home. There is no affirmative evidence to show that he did in fact go to the Earl-Springbrook area.
While in the tavern he spent time talking to his sister-in-law, who was a waitress there. Most of the conversation was not related to business, except for twenty or thirty minutes of conversation in which he discussed with her the possibility of trading in her car for a new one. There is evidence that he had alcoholic drinks during the two and one-half hours he was at the tavern.
Shortly after leaving the tavern, the deceased was killed when he was struck by an automobile near the intersection of Highways 53 and 63, approximately 1,000 feet west of the tavern, on the route that would be the most direct and suitable method of returning to Spooner. The deceased was walking on the highway when he was struck. The 1967 Ford was found undamaged at the edge of the highway, and there was testimony that its wheels had spun into the sand on the shoulder. The coroner stated there was no odor of alcohol about the body of the deceased, but a blood sample showed that the blood contained .24 of 1 percent alcohol by weight.
A few days after the accident, Orell Danger attempted to locate the prospective buyer of the 1967 Ford. He stated that he spent approximately half an hour making four telephone calls, but was unable to locate anyone who knew of a prospective purchaser.
The employer's answer to the application for death benefits admitted that Lager was in the course of his employment at the time he met his death. Subsequently, Danger appeared as a witness for his insurance company to contest the claim for compensation.
Based on this evidence, the department concluded that the deceased was not performing services incidental to and arising out of his employment as a car salesman for Arrowhead at the time of his death.
The appeal is taken from the circuit court judgment that affirmed these findings and order.
The sole issue in this case was whether there was any credible evidence to support the department's finding that the deceased was not performing services growing out of and incidental to his employment as a car salesman at the time of his accident.
Because of the meager nature of the findings of the department and the total lack of the statement of the facts relied upon, this case presents considerable difficulty.
It is clear, of course, that the scope of judicial review as provided in sec. 102.23(1)(c), Stats., limits the power of this court to set aside an order or award, with certain statutory exceptions, only when the findings of fact by the commission would not support the award. As we stated in Unruh v. Industrial Comm. (1959), 8 Wis.2d 394, 398, 99 N.W.2d 182, and as we have frequently reiterated:
"The question is not whether there is credible evidence in the record to sustain a finding the commission did not make, but whether there is any credible evidence to sustain the finding the commission did make."
It is our function, therefore, to find facts in the record, if we can, to support the department's determination. The burden is on the claimant to prove all facts essential to the claim to compensation. If the evidence presented raises any legitimate doubt, in the view of the department, as to the establishment of these facts, it is the department's duty to deny compensation. Richardson v. Industrial Comm. (1957), 1 Wis.2d 393, 84 N.W.2d 98; Bowen v. Industrial Comm. (1941), 239 Wis. 306, 1 N.W.2d 77.
As in any other workmen's compensation case, the claimant who wishes to recover death benefits has the burden of proving that, at the time of a fatal injury, the employee was performing services growing out of and incidental to his employment. There is, however, a special provision in respect to this standard that is applicable to an employee whose employment requires him to travel. Sec. 102.03(1)(f), Stats., provides:
"Every employe whose employment requires him to travel shall be deemed to be performing service growing out of and incidental to his employment at all times while on a trip, except when engaged in a deviation for a private or personal purpose. . . . Any accident or disease arising out of a hazard of such service shall be deemed to arise out of his employment."
The statute has been interpreted to create a presumption that an employee who sets out on a business trip in the course of his employment performs services arising out of and incidental to his employment until he returns from his trip. Tyrrell v. Industrial Comm. (1965), 27 Wis.2d 219, 133 N.W.2d 810; Armstrong v. Industrial Comm. (1948), 254 Wis. 174, 35 N.W.2d 212. Of course, the statute itself provides for an interruption in the employment during such time as an employee is on a "frolic of his own."
It is therefore apparent, in the instant case, that it is mandatory that the department determine whether or not the employee did in fact set out on a business trip. The question is one of fact, and the department's determination that he did in fact set out on a business trip, or its contrary determination that the employee did not set out on a business trip, will be sustained by this court if there is any credible evidence or reasonable inference therefrom to support the findings. R.T. Madden, Inc. v. ILHR Department (1969), 43 Wis.2d 528, 169 N.W.2d 73; Hilbert v. ILHR Department (1968), 40 Wis.2d 598, 162 N.W.2d 596; Neese v. State Medical Society (1967), 36 Wis.2d 497, 153 N.W.2d 552; Borden Co. v. Industrial Comm. (1958), 2 Wis.2d 619, 87 N.W.2d 261.
The findings of the commission in the instant case are unclear with respect to whether or not Lager had in fact commenced a business trip that evening. The sole statement in the findings was, "that if the deceased had intended to sell a car that evening, he had abandoned that intention and elected to spend it socially." (Emphasis supplied.)
We are unable to determine whether the department concluded on the facts that there was no evidence of a credible and probative nature to show that Lager had started on his employment or whether, having so found, it concluded that he was killed during a deviation from his business trip and while in the pursuit of his own social purposes.
There is evidence upon which the department could find, however, that Lager commenced a business trip. He twice expressed an intention to go to the Earl-Springbrook area to sell a car on the evening in question. There was evidence that he drove the very car that he said he intended to sell even though there was testimony that a different automobile was available for his personal use. Additionally, the employer stated he was permitted to use an automobile only in the course of his business. There was evidence that the route he pursued was the direct route to the area to which he declared his intention of going. There is no direct evidence to controvert a finding (were one made) that he had not in fact gone to the Earl-Springbrook area in an attempt to sell the car prior to his arrival at the tavern. There was evidence that there was ample time for him to have gone to the Earl-Springbrook area prior to 7:30 p.m.
It is impossible from the record and from the findings and conclusions of the department to know whether any or all of these facts were considered or ignored. Particularly, the record fails to reveal whether the two statements made by deceased that he was intending to go to sell a car that evening were received into evidence and considered by the department. The employer and insurance company strenuously argue on this appeal, as well as in earlier briefs, that the statements of Lager late in the afternoon and early evening of April 4, 1968, were inadmissible as hearsay, claiming they were merely self-serving declarations. We conclude that these statements, although hearsay, were properly admissible and that, as presented in this record, were exceptions to the hearsay rule. McCormick, Evidence, correctly points out, we believe, that declarations of intention are admissible and probative, not only as to intent, but as evidence that the intent was carried out by acts of the person who uttered them.
"Counsel and courts have not until recent decades recognized as widely the probative value and the theory of admissibility of these declarations of intention and design to show conduct, as in the case of the well established practice of receiving similar declarations to show intent or some other mental state which is itself in issue. Nevertheless, the modern cases and texts leave no room to doubt the statement that the accepted principle today is that evidence of declarations of a plan, design or intention presently entertained by the declarant is, subject to the usual limitations as to remoteness in time and apparent sincerity common to all declarations of mental state, admissible when offered as evidence that the design was carried out by acts or omissions of the declarant." McCormick, Evidence (hornbook series), p. 572, sec. 270.
We should also point out that sec. 227.10, Stats., provides that, "In contested cases: (1) Agencies shall not be bound by common law or statutory rules of evidence. . . ." We need not, however, in the instant case resort to this statutory admonition, because we are satisfied that the hearsay evidence herein — the recounting of the deceased's statements of intent — is admissible under common-law rules of evidence. We do not, in finding the instant declarations of intent admissible, recede from our previously expressed statements in regard to ordinary hearsay evidence not subject to a recognized exception. Outagamie County v. Brooklyn (1962), 18 Wis.2d 303, 118 N.W.2d 201.
It is impossible to tell from the department's findings whether consideration was ever given to these highly probative statements, which, when coupled with the undisputed fact that Lager set out in the Ford automobile in the direction of the Earl-Springbrook area, provide a strong inference, upon which it could be found as a matter of fact, that the deceased entered upon a trip that was in the course of his employment. This, of course, is an inference that the department need not reach but could reach.
There was the countervailing inference that could be drawn from the fact that the record contains no evidence that the deceased ever went to the Earl-Springbrook area.
It is clear, as a matter of law, that, in the event a salesman commences travel in the course of his employment and subsequently deviates from that employment but later resumes his route which he would have to follow in the pursuance of his employer's business, the deviation has ceased and he is performing services incidental to and growing out of his employment.
If it was the department's intention to say, as a matter of fact, that Lager commenced on his course of employment, the claim is not defeated even though there were a substantial deviation before he resumed his usual homeward path.
We see no evidence of record that the department based its conclusion upon the inference that Lager had never commenced his course of employment that night; and in the absence of a finding that the employment had not commenced, the accident and subsequent death was compensable.
For the reasons set forth herein, we conclude that it is impossible to determine the basis on which the department reached its conclusion. Accordingly, the record must be returned to the department for further proceedings and the making of findings that make it clear that either the department concludes that the employee never commenced his course of employment or, in the alternative and in accordance with its statutory powers, to make further findings that the decedent was in the course of his employment at the time of the fatal accident.
By the Court. — Judgment reversed and the record is remanded to the circuit court for transmission to the Department of Industry, Labor Human Relations for further proceedings not inconsistent with this opinion.
"Findings of fact
"That the deceased was employed by the employer as a car salesman; that on April 4, 1968, the deceased ate supper at the home of a friend with whom he lived, at which time he drank two old-fashioneds; that at about 6:50 p.m. he left the house; that at 7:30 p.m. he was seen drinking at the bar at Carol's River Bend Inn at Trego, Wisconsin; that he remained there until about 10 p.m.; that the deceased was involved in a fatal accident at the junction of Highways 53 and 63, a distance of about 1,000 feet from Carol's River Bend Inn, shortly thereafter; that the reasonable inference to be drawn from the facts was that if the deceased had intended to sell a car that evening, he had abandoned that intention and elected to spend it socially; that the employer attempted to find the alleged interested customer and was never able to do so, even though the area involved was sparsely settled; that the lateness of the hour further supports the inference that he was not intending to show a car that evening; that the applicants have not met the burden of proof; that the deceased did not sustain an injury in the course of and arising out of his employment for the employer."Now, therefore, this