Opinion
January 12, 1951 —
February 6, 1951.
APPEAL from a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Reversed.
For the appellant 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 there was a brief by Stroud, Stebbins, Wingert Stroud of Madison, and oral argument by Byron H. Stebbins.
West Shore Transport Company and Travelers Insurance Company, plaintiffs, commenced this action against Olivett Brasel and the Industrial Commission of Wisconsin, defendants, to review an award of certain sums as death benefits to Olivett Brasel, widow of Harvey R. Brasel, an employee of the West Shore Transport Company, who was killed on February 1, 1948. Judgment was entered on July 3, 1950, setting aside the award of the Industrial Commission dated August 6, 1949. The defendants appealed.
Harvey R. Brasel was employed by the Hammond Motor Express Company of Hammond, Indiana, and this company also owned the West Shore Transport Company at Milwaukee. In November, 1947, Brasel was transferred to Milwaukee to work as a mechanic in the maintenance and repairing of trucks and tractors of the West Shore Transport Company. His employer agreed to find him a place to live. In the words of the manager, "Due to the housing shortage the only thing that I came across was the cottage out at Potter's Lake." This cottage was located approximately thirty miles southwest of Milwaukee and a short distance from State Trunk Highway 24. There was no bus line operating between Potter's Lake and Milwaukee, and the record discloses no train or other means of transportation between those points. His employer furnished Brasel with a truck with which he transported himself to and from work and the company paid the expense of operating the truck. For the most part his work was in the Milwaukee terminal of his employer, but he was subject to emergency call twenty-four hours a day. Because he was on emergency call his employer had planned to have a telephone installed in Brasel's home but that had not yet been installed.
On Saturday, January 31, 1948, pursuant to instructions, he and other employees of the Transport Company went to Sheboygan to return some tractors to Milwaukee. They returned to the Milwaukee terminal around 5:30 or 6:30 p.m. He had orders to go to Racine to repair one of his employer's vehicles on Sunday. There is testimony that Brasel left the Milwaukee terminal around 7:30 and also that he worked until around 11:30 that evening. At about three o'clock on the morning of Sunday, February 1, 1948, while driving on the direct route from Milwaukee to Potter's Lake, the truck he was driving left the road and he was killed when the truck struck a tree. Further facts will be stated in the opinion.
The commission found that at the time of his death Brasel was performing service growing out of and incidental to his employment. The appellants' first contention is that this was a finding of fact and that there is credible evidence in the record to sustain it as such. We do not agree. Upon the record here we find that this was a conclusion of law and subject to review.
The commission further found that the contract of employment included furnishing transportation to and from Brasel's home. The appellants claim that this was a finding of fact and that there was credible evidence in the record to sustain such finding. If so, the applicant is entitled to recover.
The law upon this point is clear. The difficulty, as in many cases, is in the application of the law to the facts. The rule is stated in Githens v. Industrial Comm. 220 Wis. 658, 662, 265 N.W. 662:
"If the employer be under obligation to transport an employee to and from work, the employee is entitled to compensation if injured while being so transported. Rock County v. Industrial Comm. 185 Wis. 134, 200 N.W. 657; Western Fruit Co. v. Industrial Comm., supra, [ 206 Wis. 125, 238 N.W. 854]; Ohrmund v. Industrial Comm. 211 Wis. 153, 246 N.W. 589; Goldsworthy v. Industrial Comm. 212 Wis. 544, 250 N.W. 427. However, this rule applies only where the duty to transport exists." See also Brown v. Industrial Comm. 236 Wis. 569, 570, 571, 295 N.W. 695, and cases there cited.
In an examination to determine whether there is credible evidence to sustain the above finding, we find the manager of the Transport Company testified that the company furnished Brasel with this truck "for transportation to and from his home since there was no other transportation available;" that it was Brasel's "custom to use most any truck available at the time;" and that it was Brasel's "custom to use one of these trucks to go home and have it back in time for service in the morning again." He further testified that the company supplied Brasel with a truck for going back and forth, without any charge to him, and that the truck was furnished with fuel and serviced by the company without charge to him; that it was part of the agreement on which he came up to Milwaukee, "using the truck back and forth to come home;" that no particular truck was assigned to him, "he used a tractor one day, pickup truck next day, whatever happened to be available."
It appears from the record that he used one of his employer's trucks for transportation and for making emergency calls from his home. It also appears that he carried his personal tools used in repairing vehicles in the truck and that they were in the truck at the time of his death. This is credible evidence sufficient in amount to sustain the commission's finding of fact that the employer furnished Brasel transportation as part of his contract of employment. This finding in turn supports the conclusion of law of the commission that at the time of his injury Harvey R. Brasel was performing service growing out of and incidental to his employment.
Other contentions were raised but they become immaterial in view of our determination expressed above. That determination requires a reversal of the judgment appealed from.
By the Court. — The judgment appealed from is reversed and cause remanded with directions to the trial court to dismiss the complaint of the plaintiffs.