Opinion
December 6, 1945 —
January 8, 1946.
APPEAL from a judgment of the circuit court for Dane county: HERMAN W. SACHTJEN, Circuit Judge. Affirmed.
For the appellants there was a brief by La France Edwards, attorneys, and Alfred E. La France of counsel, all of Racine, and oral argument by Mr. La France.
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.
Workmen's compensation. This action was commenced on the 9th day of March, 1944, by Charles Musson, Chester Musson, and their insurance carrier, Hartford Accident Indemnity Company, a corporation, plaintiffs, against Valentine A. Hess, Jr., and Industrial Commission of Wisconsin, defendants, to set aside and vacate an order of the Industrial Commission awarding workmen's compensation to the defendant Hess. The facts in the case are without substantial dispute.
The claimant Hess is twenty-four years of age and resides at Tomahawk, Wisconsin. He first worked for the plaintiffs Musson for two weeks near Tomahawk, and while employed there he returned home each night. His employers then moved to a location near Athens to a place about sixty miles from Tomahawk. While working at the place near Athens, the defendant slept in a tent furnished and equipped by his employers. When the work was completed there the outfit moved to a point about four and one-half miles from Abbotsford, about seven miles from Athens and further from Tomahawk. A camp was established in a farmer's field about one-half mile off the highway. The employers provided a tent, furnished bed and bedding in which the employees could sleep. They were not required to sleep there but were free to go wherever they chose. The nearest place where sleeping accommodations could be found was at Abbotsford, four and one-half miles from the camp. Among other equipment moved to the place of employment was a tool shed, about twelve or fourteen feet long, eight feet wide, constructed of lumber and covered with tar paper. It set on two pole skids which were round and about eight inches in diameter. It was apparently portable and was moved about from place to place. Some of the men slept in the tool shed. The tent was set up near the tool shed and a trailer house.
The claimant retired on the night in question between 9 and 10 o'clock. He was awakened in the night by the sound of a storm. He was endeavoring to hold the tent flaps down at the foot of the bed when the tool shed was blown over onto him, pinning him underneath it. The tent was fastened to the ground in the ordinary way by tent stakes. The tool shed was held in place simply by its own weight.
The examiner concluded that the injuries sustained by the applicant on July 29, 1943, occurred in the course of and arose out of the applicant's employment and compensation was awarded accordingly. The findings of the examiner were reviewed and affirmed by the commission. From the judgment affirming the order, the plaintiffs appeal.
The sole question for decision is, Was the claimant at the time of the accident in question, performing services growing out of and incidental to his employment? The court and the commission held that he was. While it is true that the employers made no order requiring the claimant to remain upon the premises during the night, the circumstances were such as to make any other course on his part impractical. The camp was situated four and one-half miles from the nearest place where lodging could be obtained. Claimant had no means of transportation and would have been obliged to walk to Abbotsford in the evening and return from Abbotsford in the morning. It is considered that it was fairly within the contemplation of the parties that, under the facts and circumstances of the case, the claimant would sleep in the quarters provided for him by the employers. Food was furnished and served to the employees at the camp site, and while they were not prohibited from boarding elsewhere, it was expected that they would, and as a matter of fact they did, board there.
It is argued that the claimant was not compelled to sleep at the camp. That is true. While the circumstances in the case of Holt L. Co. v. Industrial Comm. (1919) 168 Wis. 381, 170 N.W. 366, were somewhat more compelling than the circumstances in this case, in other respects the facts were substantially the same.
The appellants contend that this case is ruled in their favor by Gibbs Steel Co. v. Industrial Comm. (1943) 243 Wis. 375, 10 N.W.2d 130. In that case a traveling salesman was injured while lodging in a tourist camp. The court pointed out that the applicant had a complete and unrestricted choice of sleeping facilities. In that case the claimant had means of transportation at hand and the employer in no way assumed responsibility for providing sleeping quarters. Where he slept was a matter of his own choosing. In this case, as in the Holt L. Co. Case, supra, while there was no compulsion in the sense of there being a contract to that effect, it was contemplated by both parties that the employee sleep upon the premises. As a practical matter under the circumstances of this case, as under the circumstances of the Holt L. Co. Case, no other choice was open to him.
Under the principles announced in the Holt L. Co. Case, supra, in Gibbs Steel Co. v. Industrial Comm, supra, and in State Young Men's C. Asso. v. Industrial Comm. (1940) 235 Wis. 161, 292 N.W. 324, it is considered that the court and the commission correctly held that at the time he sustained his injuries the claimant was performing services growing out of and incidental to his employment.
By the Court. — Judgment affirmed.