
    City of Milwaukee, Appellant, vs. Althoff, by guardian, and another, Respondents.
    
      January 17
    
    February 3, 1914.
    
    
      Master and servant: "When relation exists: Hours of employment:Injury when walking to place of work: Workmen’s Compensation Act: Municipal corporations: Liability to city employee: Defective sidewalk.
    
    
      1. The relation of master and servant may extend beyond the hours the servant is actually required to labor, and in some instances to places other than the premises where the servant is employed.
    
      2. When a city employee reported to his foreman, received his instructions for the day, and proceeded to carry out such instructions by starting for the place where he was to work, the relation of master and servant commenced, and in walking to the place of work he was “performing service growing out of and incidental to his employment,” within the meaning of sec. 2394 — 4, Stats, 1911.
    3. Where at a time when he is “performing service growing out of and incidental to his employment,” a city employee is injured by reason of a defective sidewalk, the liability provided for by the Workmen’s Compensation Act is in lieu of any other liability whatsoever, and his remedy against the city is under that section and not under sec. 1339, Stats.
    Appeal from a judgment of tbe circuit court for Dane county: E. Eat SteyeNS, Circuit Judge.
    
      Affirmed.
    
    Tbe appeal is from a judgment affirming an award of $2,138.11 made in favor of Minnie Althoff by tbe Industrial Commission under tbe Workmen’s Compensation Act against tbe city of Milwaulcee on account of tbe death of William A. Althoff, tbe father of said Minnie Altho'ff.
    
    Tbe deceased was employed by tbe city at an agreed compensation of $2 per day. His hours of labor were fixed at eight hours a day by an ordinance of tbe city, and be began work at 8 o’clock in tbe morning and finished at 5 in tbe afternoon. He was required to report to bis foreman at 1:30 o’clock each morning to receive instructions as to where be was to work during the day, so that be might reach bis place of employment at 8 o’clock. He reported according to custom on tbe morning of May 3, 1912, and, after receiving instructions as to where be was to work, proceeded toward tbe place. While on bis way be fell on a sidewalk and injured bis knee. He died on September 21, 1912, and it was found on sufficient evidence that bis death was due to tbe injury which be received when be fell.
    Eor tbe appellant there was a brief by Daniel W. Doan, city attorney, and William H. Timlin, Jr., first assistant city attorney, and oral argument by Mr. Timlin.
    
    They cited Ben
      
      son v. Lancashire & 7. R. Go. [1904] 1 K. B. 242, 6 Workm. Comp. Cas. 20; Jaclcson v. General 8. F. Go. [1909] App. Cas. 523, 2 Butterwortb’s Workm. Comp. Cas. 56; Gilmour v. Dorman, L. & Go. 105 L. T. Rep. 54, 4 Butterwortb’s Workm. Comp. Cas. 279; Walters v. Btaveley.G. SI. Go. 131 L. T. 103; Anderson v. Fife O. Go¿ 47 Scot. Law Rep. 3, 5, 3 Butterwortb’s Workm. Comp. Cas. 539; Perry v. Anglo-American D. Go. 3 Butterwortb’s Workm. Comp. Cas. 310; Kane v. Merry, 48 Scot. Law Rep. 430, 4 Butterwortb’s Workm. Comp. Cas. 379; Whitehead v. Reader, 3 Workm. Comp. Cas. 40; Kerr v. Wm. Baird & Go. 48 Scot. Law Rep. 646, 4 Butterwortb’s Workm. Comp. Cas. 397; MJDcdd v. Steel, 48 Scot. Law Rep. 765, 4 Butterwortb’s Workm. Comp. Cas. 412; Traynor v. Robert Addie S Sons, 48 Scot. Law Rep. 820, 4 Butterwortb’s Workm. Comp. Cas. 357; Barnes v. Nunnery G. Go. 4 Butterwortb’s Workm. Comp. Cas. 43; Jenhinson v. Harrison, A. & Go. 4 Butterwortb’s Workm. Comp. Gas. 194; Lowe v. Pearson, 79 L. T. Rep. 654, 1 Workm. Comp. Cas. 5; Gonway v. Pumpherston Oil Go. 48 Scot. Law Rep. 632, 4 Butterwortb’s Workm. Comp. Cas. 392; Harding v. Brynddu G. Go. [1911] 2 K. B. 747, 4 Butterwortb’s Workm. Comp. Cas. 269.
    
      Max P. Kufallc, for tbe respondent Althoff.
    
    For tbe respondent Industrial Commission there was a brief by tbe Attorney General and Byron H. Stebbins, assistant attorney general, and oral argument by Mr. Stebbins.
    
   BaRNes, J.

Tbe appellant contends that it is not liable for injuries received by one of its employees while on bis way to work; tbat tbe relation of master and servant did not exist when deceased was injured; and that if there is any liability on tbe part of the city it arises out of sec. 1339, Stats.

Sec. 2394 — 4, Stats. 1911, provides for liability for compensation'“Where, at tbe time of tbe accident, tbe employee is performing service growing out of and incidental to bis employment.” The material questions in the case are: Did the relation of master and servant exist when the accident occurred ? And, if so, was Althoff performing a service growing out of and incidental to his employment % There is no dispute on the evidence pertaining to these questions and they involve propositions of law rather than matters of fact.

The relation of master and servant may extend beyond the hours the servant is actually required to labor, and in some instances to places other than the premises where the servant is employed. Ewald v. C. & N. W. R. Co. 70 Wis. 420, 36 N. W. 12, 591; Helmke v. Thilmany, 107 Wis. 216, 221, 83 N. W. 360; Pool v. C., M. & St. P. R. Co. 53 Wis. 657, 11 N. W. 15; Kunza v. C. & N. W. R. Co. 140 Wis. 440, 123 N. W. 403.

The courts very generally hold that' the relation of master and servant exists when the servant is under the master’s control and subject to his direction. 5 Labatt, Mast. & Serv. (2d ed.) 5425, § 1806; Harvey v. T. & P. R. Co. 166 Fed. 385; Taylor v. George W. Bush & Sons Co. 6 Pennewill (Del.) 306, 66 Atl. 884; St. Louis, A. & T. R. Co. v. Welch, 72 Tex. 298, 10 S. W. 529; Powers v. Calcasieu S. Co. 48 La. Ann. 483, 19 South. 455.

Such seems to be the holding of the English courts under a substantially similar provision of the English Workmen’s Compensation Act. Sharp v. Johnson, 74 L. J. K. B. 566, 567; Blovelt v. Sawyer, 73 L. J. K. B. 155; Hoskins v. Lancaster, 3 Butterworth’s Workm. Comp. Cas. 476; Fitzpatrick v. Hindley Field C. Co. 3 Workm. Comp. Cas. 37; Lowry v. Sheffield C. Co. 1 Butterworth’s Workm. Comp. Cas. 1; Riley v. Wm. Holland & Sons, 80 L. J. K. B. 814; Holmes v. G. N. R. Co. [1900] 2 Q. B. 409.

In the instant case, when the servant reported to his foreman and received his instructions for the day and proceeded to carry out these instructions by starting for the place where he was to work, we think the relation of master and servant commenced, and tbat in walking to tbe place of work tbe servant was performing a service growing out of and incidental to bis employment.

Tbe liability provided for by tbe 'Compensation Act is in lieu of any other liability whatsoever, and tbe remedy under it is exclusive. Sec. 2394 — 4, Stats. 1911. Holding as we do tbat tbe relation of master and servant existed, and tbe parties being subject to tbe Compensation Act, tbe remedy of tbe claimant is under tbat act, and not under sec. 1339, Stats.

By the Gourt. — Judgment affirmed.

Timlin, J., took no part.  