Arnested v. McNicholas

• Decision Date: 19 July 1923
• Docket Number: No. 2.,2.
• Citation: 223 Mich. 488,194 N.W. 514
• Parties: ARNESTED et al. v. McNICHOLAS et al.
• Court: Michigan Supreme Court

223 Mich. 488

194 N.W. 514

ARNESTED et al.

v.McNICHOLAS et al.

No. 2.

Supreme Court of Michigan.

July 19, 1923.

Certiorari to Department of Labor and Industry.

Proceedings under the Workmen's Compensation Act (Pub. Acts [Ex. Sess.] 1912, No. 10) by Mayme Arnested and others, to recover compensation for the death of Carl Arnested, employee, opposed by John E. McNicholas, employer, and the United States Fidelity & Guaranty Company, insurer. The Department of Labor and Industry made an award of compensation, and the employer and insurer bring certiorari. Award affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. William C. Brown, of Lansing (Charles M. Humphrey, of Ironwood, and Washburn, Bailey & Mitchell, of Duluth, Minn., of counsel), for appellants.

Edward W. Massie, of Ironwood, for appellees.

McDONALD, J.

This is certiorari to review an award of the Commission of Labor and Industry. The claimants are the widow and three minor children of Carl Arnested, who was killed on the 11th day of November, 1921, while employed as general foreman of defendant John E. McNicholas, a road contractor. The parties lived at Marenisco Mich. Mr. McNicholas had built a cottage on Lake Gogebic about five miles from the main highway. He desired to cut a trail from the road to the cottage sufficient to accommodate a horse and wagon. The way was rough and hilly and covered with virgin timber. On the 8th day of November, 1921, the decedent, under instructions from his employer, took four other employees and began work on the trail. With one Olson he occupied himself in selecting the route and blazing the way for the other workmen, who were cutting the brush and grading the road. By the morning of November 11th, the trail had been blazed for the entire distance, but the route was not satisfactory to Arnested, and there is evidence that he was looking for a better one. A truck was used to convey the men from Marenisco to the junction of the main road and the trail. On the morning of November 11th, the men left the truck at the junction, and Arnested remained to park it. That done he followed them, and about 10 o'clock reached the place where they were at work. Staying there but a short time he continued along the trail. He was not thereafter seen alive by any one. About an hour after he left them the men heard several rifle shots. Early in the afternoon his body was found on a hill a short distance from the trail. He had been shot under the armpit of the right arm. On the body was found a note in decedent's handwriting which read: ‘Somebody shot me. Goodby Mamie.’ The deer season was open, and the locality was much frequented by hunters. It seems to be conceded that he was shot by a stray bullet or was the victim of the carelessness of some hunter, who mistook him for a deer. It was the custom for some of the workmen employed in that locality to carry rifles during the deer season. The decedent did so. He had shot a deer the day before and had his rifle with him at the time of his death. As dependents, his wife and children presented a claim for compensation which the Commission allowed.

The respondents are here asking that the award be vacated for the reason that the accident, which resulted in the decedent's death, did not arise out of and in the course of his employment.

In its findings the Commission said:

‘We think the testimony clearly shows that deceased was looking for a better trail at the time he met with the fatal accident. He was found at the spot where he had told his men he intended looking for a better route.’

Was the decedent engaged in his employment at the time of the accident? The evidence shows that the decedent was assisted in blazing the trail by an employee named Olson. Referring to the day of the accident, Mr. Olson testified:

‘Q. You know that on this day you were still unsatisfied with this trail and were looking for a better trail to be graded on leveler surface? A. Yes, sir.

‘Q. You also knew that Mr. Arnested was looking up a better trail, as you men were working along there? A. Yes, sir; he was telling me that there must be a better place for a road...