Pederson v. Industrial Commission

Owen, J. John Kromrey had worked for Niebuhr & Son for about fifteen years, handling produce in a warehouse. On August 18, 1928, the business was in the hands of Peder-son and Voechting as trustees. On the afternoon of that day the trustees advised Kromrey that his services would not be needed thereafter. He quit work at six o’clock. In the evening, in response to a telephone call, he went to Pederson’s office, which was independent of and some distance from the building where Kromrey had worked. He gave Pederson the keys. He was not paid at the time, as Voechting, who was required to join with Pederson in signing checks, was not present. The matter of paying Kromrey his wages was left until Monday morning. On Monday forenoon Peder-soh saw Kromrey going by the office and called him in. Kromrey had not turned in one certain sales slip on some grain that he had sold and, at the request of Pederson, went back to his home, obtained it, and turned it in. At that time, ten or eleven o’clock Monday morning, Kromrey was paid. There was then some conversation between Kromrey and Pederson about Kromrey getting his jacket and tools from the building, but Kromrey did not ask Pederson to open the building. Knowing that the warehouse was open in the afternoon, Kromrey went there for the purpose of removing his overalls, jacket, wrench, and saw, which he had used in his work there. While going downstairs to the basement where the articles were, he slipped, breaking a bone in his foot. The question is whether, under these circumstances, [601] the relation of employer and employee existed between Kromrey and his former employers. The Industrial Commission held that it did, expressing the view that after termination of actual work an employee has a reasonable time within which to remove from the premises upon which he has been employed, personal belongings, tools, or equipment, which have been used by him in connection with his work. We know of no general rule of law to the effect that the relation of employer and employee thus continues, nor do we know of any legal principle upon which such a conclusion may rest. Upon general principles, the relation terminates when the employee quits work or upon his discharge by the employer. If Kromrey was under the protection of the compensation act when he returned to the warehouse Monday afternoon for the purpose of securing his clothes and tools, it was because of the provisions of that act. The only provision thereof which would seem to have a bearing upon the question is that of sec. 102.07 (4), defining an employee to be “every person in the service of another under any contract of hire, express or implied, oral or written,” and the provision of sec. 102.03 imposing upon employers liability for compensation for any personal injury accidentally sustained by an employee “where, at the time of the accident, the employee is performing service growing out of and incidental to his employment,” and further providing that “every employee going to and from his employment in the ordinary and usual way, while on the premises of his employer, shall be deemed to be performing service growing out of and incidental to his employment.” Under these and similar provisions, it seems to be conceded that an employee is under the protection of the compensation act after his discharge, provided he be injured upon the premises of his employer while remaining there for reasons connected with his former employment. 1 Honnold, Workmen’s Compensation, p. 373; Zygmuntowicz v. American S. & W. Co. 240 Mass. 421, 134 N. E. 385. [602] It is likewise held that even after his discharge the employee is under the protection of the act while presenting himself at the usual place for the purpose of receiving his pay. Thus in the English case of Riley v. William Holland & Sons, 1 K. B. 1029, 4 Butterworth’s W. C. C. 155, an employee discharged on Wednesday was held entitled to compensation for injuries sustained on Friday, the regular pay-day, at the place to which she was required to repair for the purpose of receiving her wages. This was on the theory that her contract of employment, either expressly or impliedly, required her to present herself at the appointed place on a specified day to receive her wages, and that in doing so she was but performing a service required of her by the conditions of her contract of employment. Perry v. Beverage, 121 Wash. 652, 209 Pac. 1102, 214 Pac. 146, .and our own case of Hackley-Phelps-Bonnell Co. v. Industrial Comm. 165 Wis. 586, 162 N. W. 921, are of similar import. For like reasons it is also held that where by express or implied provisions of the contract of employment the employee is required to return to the premises for the purpose of finishing up his work after his discharge, he is still under the protection of the act upon his return to the premises under such circumstances. Thus in Mitchell v. Consolidated Coal Co. 195 Iowa, 415, 192 N. W. 145, a miner who had quit his job was allowed compensation for an injury sustained by him while going down into the mine two or three days after his discharge. The decision in that case was based upon a custom existing in the mining industry in that district, to the effect that when a man is discharged it is his right and duty to square up the room and secure the place in which he is working. He was required to shoot off the corners and load out the coal he had down. When a man quit he was required to square up his work before he could draw his wages. His presence at the mine at the time of his injury was therefore attributable to the implied provision [603] of his contract of employment resulting from this custom in the industry in which he was working. In a later case, Johnson v. Albia, 203 Iowa, 1171, 212 N. W. 419, compensation was denied to an engineer of a pumping plant of defendant’s waterworks, where he quit work on the evening of November 15th, returned to the plant on November 16th for the purpose of getting his tools, and was injured while assisting his successor in starting one of the engines with which his successor was having trouble at the time he returned. The reasoning of the court was to the effect that under the Iowa statute, in order to entitle the injured person to compensation, there must be a contract of service, express or implied, at the time of the injury; that the contract of service terminated on the evening of November 15th, when he left the plant and turned his key over to his employer or to his successor; that he was never employed thereafter, and that he returned to the plant for a purely personal reason, namely, to secure his tools. In a dissenting opinion, Evans, C. J., expresses the view that compensation should have been allowed, basing his contention, however, upon what he considered evidence of a custom in that locality which required a pumping engineer to render service to his successor in order to enable such successor to continue the work. His contention, however, plainly recognized the general principle that his presence at the pumping plant at the time of the injury must be attributable to the provisions of his contract of employment. In the English case of Molloy v. South Wales A. C. Co. 4 Butterworth’s W. C. C. 65, a colliery repairer was ordered to do certain work in the mine, which he declined to do, and left off work. He returned on the following Monday, and after some discussion with the manager, who had told him he had dismissed himself, obtained leave to go down into the mine to bring up his tools, which he left there. While down in the mine for that purpose he was injured by the fall of a [604] stone. The trial judge found that the manager, on dismissing Molloy, ordered him to fetch his tools, and that the accident arose out of and in the course of his employment. The case was not contested on the ground that compensation would not follow if the miner had been ordered by the foreman to fetch his tools, but it was contested solely upon the ground that this finding had no support in the evidence, and the court was urged to send the case back to enable the employer to show that the miner was not ordered to fetch his tools. But the response of the court, by Cozens-Hardy, M. R., simply was, “I am afraid we can do nothing for you,” and the appeal was dismissed. These cases give expression to the true rule. It is one thing to say that an employee may return to the premises after his discharge for the purpose of securing his personal belongings, and quite another thing to say that upon such return the relation of employer and employee obtains. If the relation does exist, it must appear that the errand of the employee was not merely for his personal convenience, but that his presence there was referable to his contract of employment and, in some measure, in obedience to his contractual obligation. Unless this appears, it cannot be said that he was injured while rendering service under a contract of hire or while going to and from his employment in the ordinary and usual way while on the premises of his employer, which are the only provisions of the workmen’s compensation act which can be invoked to entitle the employee to compensation. The award of the Industrial Commission was properly vacated by the trial court, and the judgment must be affirmed. By the Court. — So ordered.