Brooks v. Fields

• Decision Date: 07 June 1965
• Docket Number: 3,Nos. 2,s. 2
• Citation: 375 Mich. 667,135 N.W.2d 346
• Parties: Ernest BROOKS, Plaintiff and Appellant, v. Oscar FIELDS and John McDill, Defendants and Appellees. Dolores BROOKS, Plaintiff and Appellant, v. Oscar FIELDS and John McDill, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 346

135 N.W.2d 346

375 Mich. 667

Ernest BROOKS, Plaintiff and Appellant, v. Oscar FIELDS and John McDill, Defendants and Appellees.

Dolores BROOKS, Plaintiff and Appellant, v. Oscar FIELDS and John McDill, Defendants and Appellees.

Nos. 2, 3.

Supreme Court of Michigan.

June 7, 1965.

James Turnage and Leitson, Dean, Dean & Abram, by Robert Abram, Flint, for appellants.

Burroughs, Buck, Stalker & Chapman, Flint, for Oscar Fields.

Gault, Davison & Bowers, Flint, for John McDill.

Before the Entire Bench, except BLACK, J.

SOURIS, Justice (for reversal and remand).

Defendants asked the trial court to grant summary judgment in their favor, alleging as the sole basis for such grant the provisions of section 1 of part 2 and section 15 of part 3 of the workmen's compensation act, C.L.S.1961, §§ 412.1, 413.15 (Stat.Ann.1960 Rev. §§ 17.151, 17.189). Section 1 pertinently provides:

'Every employee going to or from his work while on the premises where his work is to be performed, and within a reasonable time before and after his working hours, shall be presumed to be in the course of his employment.'

Section 15 pertinently provides:

'Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies * * *'.

The trial judge in his decision granting summary judgment stated that since plaintiff Dolores Brooks had alleged in her complaint all of the facts necessary to bring into play the presumption of section 1 she could not on trial be permitted to rebut that presumption, and if the presumption were unrebutted her suit could not succeed. We need not consider this reasoning process in its entirety simply because the trial judge's basic premise was wrong.

The fact is that the complaint of Dolores Brooks did not allege all facts necessary to give rise to section 1's presumption. For example, nothing appears in the complaint, or in any of the non-conclusionary pleadings before the trial court, to indicate when or whether Mrs. Brooks' working hours had begun or ended. Without such information, it is impossible to say that the presumption has arisen, since it arises only within a 'reasonable time' before or after working hours. Thus the judgment of the trial judge, based as it was upon a major misconception of the record, cannot be permitted to stand.

Furthermore, even if Mrs. Brooks were in the course of her employment by virtue of section 1's presumption, she would not be barred from suit by section 15 unless the defendants also were in the course of their employment by the same employer. Aside from pleading such conclusion as an affirmative defense, denied by plaintiffs, there was nothing before the trial court, not even an affidavit, from which such a finding could be made even if it were then appropriately the function of the judge to make such findings. Under such circumstances, summary judgment as provided for by GCR 1963, 117, should not have been entered. See Durant v. Stahlin, Mich., 135 N.W.2d 392, also decided this day.

Reversed and remanded. Costs to plaintiffs.

KAVANAGH, C. J., and SMITH and ADAMS, JJ., concurred with SOURIS, J.

Before the Entire Bench.

KELLY, Justice.

Plaintiffs appeal from the trial court's order granting defendants' motion for summary judgment as set forth in their 'Statement of Facts,' under the subheading 'The Accident Facts,' as follows:

'These are the cases of Dolores and Ernest Brooks which are consolidated for appeal. Plaintiff Dolores Brooks was injured in an automobile collision which occurred on January 13, 1961, at about 3:10 P.M., in a private parking lot maintained by the Ternstedt Division, General Motors Corporation, when an automobile owned and operated by defendant John McDill collided with an automobile owned and operated by defendant Oscar Fields, while Dolores Brooks was in said John McDill's vehicle as a passenger. Plaintiff Ernest Brooks brings his action for medical expenses and loss of his wife, Dolores Brooks' services and consortium. Dolores Brooks, John McDill and Oscar Fields were all employed by the Ternstedt Division, General Motors Corporation, and were all employed in the same plant. Ernest Brooks was not employed by the Ternstedt Division. The collision between the two vehicles happened at the conclusion of the working day.' (Emphasis ours.)

Both defendants filed affirmative defenses alleging that plaintiff Dolores Brooks and both defendants, together with their mutual employer, were at the time of the accident subject to the provisions of the workmen's compensation act and that the exclusive remedy for recovery on account of injuries and admages sustained 'is that provided by said workmen's compensation act.'

Plaintiffs answered defendants' affirmative defenses denying the allegations and stating 'that as a matter of fact your Dolores Brooks was not not acting within the scope of her employment.'

Defendants moved the court to enter summary judgment for the reason that: 'Plaintiff's action is barred by the provisions of Michigan Statutes Annotated, Sections 17.151 and 17.189.'

The pertinent part of C.L.S.1961, § 412.1 (Stat.Ann.1960 Rev. § 17.151) is the amendment by P.A.1954, No. 175, that:

'Every employee going to or from his work while on the premises where his work is to be performed, and within a reasonable time before and after his working hours, shall be presumed to be in the course of his employment.'

C.L.S.1961, § 413.15 (Stat.Ann.1960 Rev. § 17.189) provides in part as follows:

'Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies, but such injured employee or his dependents or their personal representative may also proceed to enforce the liability of such third party for damages in accordance with the provisions of this section.'

In granting defendants' motion, the trial court, after holding that the language of the act as amended ¹ applies not only to one "while at the place where his work is to be performed or while actually performing it, but to one 'going to or from his work while on the premises,"' asks 'where', as in the instant case,...