
    Hackley-Phelps-Bonnell Company, Appellant, vs. Industrial Commission of Wisconsin and another, Respondents.
    
      April 27
    
    May 15, 1917.
    
    
      Workmen’s compensation: Injury to employee while going for Ms pay: Service growing out of and incidental to employment: When employment terminates: Evidence.
    
    1. An employee going in the usual manner for his pay to a place designated by the employer is performing a service within his employment.
    2. Thus, where an employee of a logging company in one of its. camps, being about to take a vacation, was given a time slip and was told to go, as was customary, by one of the company’s logging trains to its office in a village some miles away to get his pay, and while riding on such train was accidentally injured, it is held that he sustained such injury while in the employ of the logging company and while “performing service growing out of and incidental to his employment,” within the meaning of sub. (2), sec. 2394 — 3, Stats.
    3. Although the employee testified in such case that when he received his time slip he was through with his work until he should come back again, this evidently referred only to such manual labor as he had been doing for his employer and was not conclusive upon the question whether the relation of employer and employee terminated at that time.
    4. It being held that at the time of the accident the employee was acting within the scope of his employment as fixed by the contract and custom of the parties, it is unnecessary to consider what bearing, if any, the provision in sub. (2), sec. 2394 — 3, Stats., relating to employees going to and from their employment, has upon the case.
    ■ Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.
    
      Affirmed.
    
    In May, 1914, Qus DrewetzJci was employed by an agent in Chicago to work for plaintiff in a logging camp near Phelps, Wisconsin. When he arrived at Phelps plaintiff’s bookkeeper sent him to the camp by its logging train and told him to come to Phelps to get his pay. On February 8, 1915, DrewetzJci told the foreman of the camp that he was going to take a vacation and the foreman told him to go to Phelps to get his money and gave him a time slip for that purpose. He also told him that the first train was gone and that he would have to walk and meet the other one. Drewetzlci walked three or four miles from camp and then got on the train, and while riding thereon received an injury to his arm which necessitated amputation at the shoulder, for which injury he was awarded compensation. w Employees usually went from the camp at which they were working to Phelps on the logging train and railway owned.‘and operated by plaintiff, and Drewetzlci paid no fare for rides he had had on the train. He says he was through with his work when he received his time .till he came hack again. The plaintiff’s cashier and auditor testified:
    “The company furnished a train for employees to go out to the camp. It came in twice a day and we always told them about what time it left for camp, and sbmetimes we held the train until the afternoon passenger train came in, when we had quite a number of men coming in a day, and told the train men to take them out. There is a special car outside of the regular car on the train when there is a crowd — a wood car which we are using in taking wood tq.'the chemical works. This road out to the camp at which the applicant worked is owned by the company and is used for carrying logs and wood to the town of Phelps, hut not to carry passengers. It carries no passengers or freight for hire.”
    Plaintiff’s construction foreman testified:
    “The applicant worked for me three or four years prior to Eebruary 8, 1915. He used to go to tdwn and take a vacation and then come hack. On Eebruary 8, 1915, right after dinner, he told me that he was going to take a layoff for a few days, so I gave him his time slip anil told him he would have to go to the office for the rest of-his time and get his money there.”
    The Commission found that DrewetzÉi^ received his injury while in the employ of the plaintiff and while performing service growing out of and incidental to 'his employment and awarded him compensation according to the statute. Plaintiff brought an action in the circuit court for Dane county to-test the validity of the Commission’s order awarding compensation, and from a judgment confirming the order it appealed.
    The cause was submitted for the appellant on the brief of Brown, Pradt '& Genrich of Wausau, and for the respondent Industrial Commission on that of the Attorney General and Winfield W. Gilman, assistant attorney general.
   Vinje, J.

The ground upon which plaintiff seeks to set aside the order of the Commission is that the employee was-not at the time of his injury in the employment of plaintiff nor performing service incidental to or growing out of such employment, and it is claimed that this is conclusively shown because the employee testified that when he received his time slip he was through with his work until he should come back again. There is no dispute about the facts. That being so, the question whether the relation of employer and employee was terminated upon the receipt of the time slip is one that must be determined from correct inferences drawn from the undisputed facts. The employee’s opinion concerning it could not bind the judgment of the Commission or that of the-courts. But it is quite evident that the employee meant only that he had no further work to do for the employer till he came back — meaning by work only such manual labor as he had been doing for the employer. So the testimony relied upon does not materially affect the question determined by the Co'mmission.

It appears from the evidence that Phelps was the headquarters for the logging operations of plaintiff. The employee was sent there from Chicago. He reported there for-duty and was told by the bookkeeper to go to the camp in question, but that he had to come back to Phelps for his pay. His employer furnished the employees transportation free to and from the camps. That such means of transportation were primarily used for the transportation of logs is immaterial. When the employee received his time slip he was told by the foreman that he had to go to Phelps to get his pay and he was informed that he could ride on1 the logging train, as he had done before and as he knew the custom was. The logging road and train belonged to the employer and were used in the prosecution of the business .the employee was engaged in. The essential elements of the contract of employment were that the employee should render services for the employer and in return therefor the employer should pay him an agreed, compensation. The duty to pay and the right to receive the compensation were integral parts of the contract of employment. For the convenience.,of the employer the place of payment was some distance from the place of service, hut in going-to and from such place of service the conveyance furnished' therefor by the employer was used by. the employee. So ingoing to get his pay he was but fulfilling a duty imposed upon him by the employer and using the means of conveyance: which the employer furnished his employees for such purpose.

The general principle is that employment exists only in the area of duty. 1 Bradbury, Workm. Comp. (2d ed.) 405. Tested by this principle the employee: comes within it. He was entitled under his contract to receive compensation for his services. His employer directed him to go to a place some distance from his work to get his pay and offered him the means of transportation for going there. He went in obedience to the duty placed upon him by his employer and acquiesced in by him — performing the last act under the contract whereby each could receive the; full benefit thereof.. Had the employer paid him at the canip a different question would be presented.

A number of cases are cited by the plaintiff holding that employees receiving injuries while coming or going to their employment in vehicles gratuitously .ftirnished by the employer are not entitled to compensation. These do not touch the present case because those injuries were received before the employment began or after it terminated. Here the employee, as we have pointed out, was still performing a duty imposed upon him by his employer and one necessary to perform before the terms of the contract of employment were mutually satisfied.

If we turn to the text-books and decided cases on this subject we find that they sustain the view that an employee going in the usual manner for his pay to a place designated by the employer is performing a service within his employment. 1 Bradbury, Workm. Comp. (2ded.) 438; 1 Honnold, Workm. Comp. 356; Lowry v. Sheffield C. Co. 1 Butterworth’s Workm. C. C. 1; Nelson v. Belfast Corp. 1 Butterworth’s Workm. C. C. 158; Riley v. W. Holland & Sons, 4 Butterworth’s Workm. C. C. 155; Re Phillips, 1 Bull. Ind. Comm. of Ohio, 49. In Lowry v. Sheffield C. Co., supra,, the facts were these: A collier left his work at 5 o’clock on a Saturday morning. At noon of the. same day he went for his wages for a fortnight past. He went along a footpath which had been made by the employer for its workmen, and was going along the G-reat Central Railway line, which .ran through the employer’s premises, when he was knocked down by an engine and injured. He was not going to resume work till the following Sunday night. The court held that the employee was entitled to compensation, and through Cozens-Hakdy, Id. R., said:

“It is admitted that it was part of the contract of employment that the company should pay this man at their pay office and that he should go there to get his wages. While going to the pay office to get his wages he met with an accident on the company’s premises. In these circumstances the court is asked to say.the accident did not arise in the course of his employment. In my view it was just as much part of his employment to go to the pay office on that day at tHat bour as it was to go down the pit- on the following Sunday night.”

In Nelson v. Belfast Corp., supra; it appeared that the workman went some distance- from his place of work to get his pay and was injured while returning by being knocked down by a cart upon stepping off from a tram car. It also appeared that he was paid for the time consumed in going and coming, but his right to recover was not predicated upon the fact that he was paid for the time. Without referring to such fact the court held that the accident arose out of and in the course of the workman’s employment. In Riley v. W. Holland & Sons, supra, the employee’s work terminated on Wednesday. On the following Friday she went to the office to get her pay according to the custom of employees and was injured. The court held she was entitled to compensation, saying:

“Though her employment was at an end Wednesday night, in the sense that she ceased to' work under the contract, yet the employment continued because of'the obligation pf the employers to her arising out of the employment and continuing until Friday noon.”

In Parker v. Pont, 5 Butterworth’s Workm. C. C. 45, compensation was,denied to a workman who was' going to get his pay and receive further instructions as to his work on the ground that he did not proceed by the usual means of conveyance but chose one more hazardous. This the court held he could not do at the risk of the employer.

Bespondents rely upon sub. (2), sec.- 2394 — 3, Stats. 1915, which provides 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.” Since we have come to the conclusion that the employee was acting within the scope of his employment as fixed by the contract and custom of tlie parties, we have not found it necessary to consider what hearing, if any, this statutory provision has on the subject.

By the Gourt. — Judgment affirmed, with costs in favor of the respondent Drewetzki.  