United States Casualty Co. v. Superior Hardware Co.

Eschweiler, J. Mr. Stern’s duty did not require him to go first to his employer’s place of business before starting out to make the rounds of his customers in the city, and he had no other present objective in view while crossing Broadway and Ogden avenue at the time of the accident than the visit to his prospective first customer, whose place of business was on Broadway about a half a block west of the place of accident. To entitle him to compensation from his employer under the provisions of sub. (2), sec. 2394 — 3, it must be shown that at the time of the accident “the employee is performing service growing out of and incidental to his employment.” That such a city salesman, injured by an accident attendant upon his being upon the highway while soliciting orders for his employer, is so entitled to such relief, has heretofore been declared by this court (Schroeder & Daly Co. v. Industrial Comm. 169 Wis. 567, 173 N. W. 328), and under the ruling in that case this plaintiff’s right to compensation would be beyond question if, at the time of the accident, he had reached a point in his daily journey beyond the first customer and on the way to another. We can see no substantial ground for holding that the liability of the master should be any less in the situation here disclosed than that in the case just above cited. Mr. Stern not being required to first report to and then start from the employer’s place of business in the performance of his services must be, and is now so held to have been, in [165] the course of his employment at the time of this particular accident. ^We are satisfied that such conclusion is also well supported by the following decisions: Milwaukee v. Fera, 170 Wis. 348, 174 N. W. 926, where the employee of a city garbage collector was driving back to his employer’s barn after his last load for the day; Moran’s Case, 234 Mass. 566, 125 N. E. 590, where a solicitor and collector for a life insurance company was fatally injured while running to catch a street car; Globe Ind. Co. v. Industrial Acc. Comm. 35 Cal. App. 89, 171 Pac. 1088, a bookkeeper injured by an automobile as he was crossing a public street to mail a letter for his employer; Kunze v. Detroit S. T. Co. 192 Mich. 435, 158 N. W. 851, a supervising foreman on his way in the usual course of his employment from inspecting work being done by defendant at one place to another; In re Harraden, 66 Ind. App. 298, 118 N. E. 142, where a fire insurance agent-whose duties required him to,travel from one city to another was injured by slipping on the sidewalk on his way from the train to the hotel. We have examined the cases cited and relied upon by respondent claimed to support the contrary view, but we do not deem them applicable to the present situation and certainly not controlling here or necessary to be discussed. We are also forced to the conclusion that the nonsuit cannot be supported upon the second ground upon which it was placed by the trial court. By the testimony of the defendant’s president on adverse examination it was defendant’s automobile truck that caused the injury. The testimony of Mr. Stern is sufficient to warrant.the conclusion that at the time of the collision he was east of the center of Ogden avenue. If the auto truck came on Broadway from the west at the time, the inference would be proper that in so doing it had violated the law of the road quoted above. A witness who was walking south on Ogden avenue at the time [166] of the accident and had passed Mr. Stern at Broadway and who subsequently assisted in removing Mr. Stern from under the truck testified that there was an auto truck resen^-bling the one causing the injury at a point on Broadway west of Ogden avenue, and that at such time he saw no other approaching automobile. We think there was sufficient evidence to require the submission of the issues involved to the jury. Complaint is made by defendant of the reception in evidence, on plaintiff’s offer, -of the findings made by the industrial commission in the proceedings upon the claim for compensation by Mr. Stern against his employer and the plaintiff as its insurer. Being in the nature of a judgment or final determination of a dispute between other parties, it could not be considered conclusive upon the question of defendant’s liability herein. It could be properly considered, however, as at least making prima facie proof of the facts necessarily alleged in the complaint herein, viz. of claim having been made by Mr. Stern against the employer and that the claim had been allowed and paid, and such allegations being put in issue by defendant’s answer. Grand Rapids L. Co. v. Blair, 190 Mich. 518, 526, 157 N. W. 29; Oceanic S. N. Co. v. Compañia Transatlantica Espanola, 134 N. Y. 461, 469, 31 N. E. 987; Jones, Ev. (2d ed.) § 590; 23 Cyc. 1271; 15 Ruling Case Law, 1021. The judgment of nonsuit therefore having been improperly granted, plaintiff’s motion for a new trial should have been allowed. By the Court. — Judgment reversed, and the cause remanded for further proceedings, and a new trial granted.