Opinion
March 11, 1949. —
April 12, 1949.
APPEAL from a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Affirmed.
For the appellants there was a brief by Fisher, Reinholdt Peickert of Stevens Point, and oral argument by Richard T. Reinholdt.
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.
Action begun January 5, 1948, by Harland E. Schulz and James Schulz, copartners doing business as Schulz Brothers, and the Bituminous Casualty Corporation against the Industrial Commission of Wisconsin, Walter P. Malchow and Hazel Malchow, and the state of Wisconsin to set aside an order of the Industrial Commission awarding compensation to Walter P. and Hazel Malchow because of the accidental death of their son, Robert Malchow.
From a judgment affirming the order of the Industrial Commission, plaintiffs appeal.
On March 23, 1947, deceased, Robert Malchow, was hired by Schulz Brothers, a trucking concern in Neenah, Wisconsin. as a truck driver. That evening one Kenneth Kearn, another driver employed by Schulz Brothers, was making a trip from Neenah to Chicago., Illinois. Deceased evidently was sent along on the trip to observe methods and to learn the route.
On Highway 141 the men saw what they thought was an accident. Two automobiles were standing on the west side of the highway. One of them was in the ditch and the other was entirely on the shoulder except for the left front wheel which was on the highway. Kearn had been instructed by his employer to stop when someone was injured and give aid. With the purpose of complying with that instruction, he stopped his truck.
While Kearn was getting out fusees to warn drivers of the truck parked off the highway, deceased got out of the truck and walked over to the scene of the accident. His purpose must have been to see if he could help although Kearn had not told him that he should. While in a position opposite the two automobiles, a passing automobile struck and killed him instantly.
The Industrial Commission found that at the time of his death deceased was performing service growing out of and incidental to his employment with Schulz Brothers and ordered payment of funeral expenses and certain sums as death benefits to Hazel and Walter P. Malchow because of the death of their son and $2,000 to the state of Wisconsin pursuant to sec. 102.49 (5), Stats.
An action was brought on January 5, 1948, in the circuit court for Dane county to have the order of the Industrial Commission set aside. On June 29, 1948, a judgment was entered confirming the order of the commission. Plaintiffs appeal.
In order for an employee to recover compensation under the Workmen's Compensation Act, two things must be proved: (1) That he was acting in the course of his employment at the time of the accident; and (2) that the injury was in some way due to the employment.
The commission had grounds for its conclusion in the fact that deceased had entered upon his employment for Schulz Brothers as a student-driver. The only inference from that fact and the further fact that he was sent with Kearn to Chicago was to acquaint himself with all that was reasonably necessary for him to know to enable him to discharge his duties. Kearn, the driver-instructor, said that he had been instructed by his employer to stop when someone was injured in an accident and give aid. The acts then to be performed would be such as called for by the circumstances; and whatever they were, his acts would be proximately and legally connected with his duties under the instructions. While an employee's duties must appear from contract, an employer's instructions may enlarge the scope of employment so as to include assistance in case of accident to a third person.
Seeing the two cars off the road, Kearn stopped. He had reason to believe that in such a situation there would be someone injured. There can be no question but that at the time he and the deceased were acting in the course of their employment because complying with the express command of their employer. It follows that in leaving the truck to go to the scene of the accident, Malchow was acting within the course of his employment.
Since Malchow was acting in the course of his employment in walking to the accident, his death, which occurred when a passing car struck him, clearly was incidental to his employment.
By the Court. — Judgment affirmed.