Adams v. Novo Engine Co.

• Court: Michigan Supreme Court
• Writing for the Court: NORTH
• Citation: Adams v. Novo Engine Co., 264 Mich. 292, 249 N.W. 859 (Mich. 1933)
• Decision Date: 29 August 1933
• Docket Number: No. 103.,103.
• Parties: ADAMS et al. v. NOVO ENGINE CO. et al.

264 Mich. 292

249 N.W. 859

ADAMS et al.

v.NOVO ENGINE CO. et al.

No. 103.

Supreme Court of Michigan.

Aug. 29, 1933.

Certiorari to Industrial Accident Board.

Proceedings under the Workmen's Compensation Act by Mamie Adams and another to recover compensation for the death of Huston Johnson, employee, opposed by the Novo Engine Company, employer, and the Michigan Mutual Liability Company, insurance carrier. To review a determination of the Industrial Accident Commission disallowing the claim, claimants bring certiorari.

Affirmed.

Argued before the Entire Bench.R. M. Van Dyne and Dudley Mallory, both of Flint, for appellants.

L. J. Carey, of Detroit (R. B. Hart, of Detroit, of counsel), for appellees.

NORTH, Justice.

Plaintiffs are, respectively, mother and brother of Huston Johnson, whese death resulted from an injury received at the time he was in the employ of the Novo Engine Company. As alleged dependents, plaintiffs made claim for compensation. Upon review before the Industrial Accident Commission, plaintiffs' claim was disallowed on the ground that the accident resulting in the death of the employee did not arise out of and in the course of his employment.

We quote the following from the opinion of the commission: ‘There were two overhead cranes in the plant in which the decedent was working, known as the east and west cranes. He was engaaged to operate the east crane, and one Tony was employed to operate the west crane. The west crane was out of repair and defendant's foreman had directed that it be placed in what is known as a neutral zone between upright posts. The operator of the crane went to the cab from which the crane was operated by ascending ladders attached to the posts at the side of the bay over which the crane operated. The decedent was not employed to operate the west crane and at this time the crane was out of repair. The electricians were on the crane repairing it. The decedent, without any authority and contrary to instructions given to him by his foreman, attempted to go to the cab of the west crane. He evidently ascended the ladders on one of the posts and shinned along the rail to where the crane was standing. His foot accidentally came in contract with a live wire and he was injured. He fell to the floor below, a distance of about twenty-five feet, resulting in injuries causing his death on the day of his accident.’

After noting that both parties were subject to the Compensation Law, and that, since deceased was killed while working at defendant's plant, the burden was upon defendant to show that the accidental injury resulting in his death did not arise out of and in the course of his employment (Papinaw v. Grand Trunk Railway Co., 189 Mich. 441, 155 N. W. 545;Wishcless v. Hammond, Standish & Company, 201 Mich. 192, 166 N. W. 993), the opinion of the commission continues:

‘But if the decedent violated the instructions of his foreman in going on this crane, he having no duty there to perform, and being in a place where his duties did not call him to be, his dependents cannot recover compensation. There is no proof upon the part of the plaintiff, justifying the decedent's being on this particular crane. There is no evidence on the part of the plaintiff which would justify a finding of fact that he was on the west crane in pursuance of any duty he had to perform for his employer. On the other hand, there is evidence on the part of the employer that he was there in violation of instructions from his foreman. * * *

‘It is cleary established that the decedent was at a place where his duties did not call him to be, and in violation of his employer's instructions. His dependents cannot recover compensation on account of his death. This case is controlled by the cases of Spooner v. Detroit Saturday Night Company, 187 Mich. 125, 153 N. W. 657, L. R. A. 1916A, 17;Buvia v. Oscar Daniels Company, 203 Mich. 73, 168 N. W. 1009, 7 A. L. R. 1301; and Gacesa v. Consumer's Power Company, 220 Mich. 338, 190 N. W. 279, 24 A. L. R. 675.’

We quote from the testimony bearing upon the question of whether the employee was acting in violation of his employer's instructions at the time of the accident:

Herman Rapelje: ‘Q. Were you employed by the Novo on the day Huston Johnson met his death? A. Yes, sir.

‘Q. What is your capacity? A. Foreman, foundry department. * * *

‘Q. How long before the accident were you at the scene? * * * A. I was there not exceeding five minutes.

‘Q. Did you see Huston Johnson at that time? A. He was standing down at the south of the crane.

‘Q. Did he say anything to you? A. He did.

‘Q. What did he say to you? A. He said, ‘How am I going to get that dinner pail?’

‘Q. What did you say to him?

‘Mr. Wilson. I object to that as being incompetent, what was said between these parties five minutes before.

‘Commissioner: He may answer.

‘Q. What did you say to him? A. ‘Stay to hell away from that crane.’

‘Q. Did Huston Johnson have any duty that called him to get upon that west crane? A. No, sir.

‘Q. And you told him five minutes before that to stay to hell off that crane, is that correct? A. Yes.’

While the testimony is not very definite, it appears that the dinner pail referred to probably belonged to another employee who operated the west crane. The question of the admissibility of the testimony offered to show that decedent at the time of his injury was acting in violation of his employer's orders is of prime importance. Rapelje was the only witness who testified on this phase of the case. Appellants urge in their...