Bush v. Parmenter, Forsythe, Rude & Dethmers

• Decision Date: 14 June 1982
• Docket Number: No. 9,Docket No. 64566,9
• Citation: 320 N.W.2d 858,413 Mich. 444
• Parties: Yvonne BUSH, Widow of Orrin H. Bush, Deceased, on behalf of herself and minor children, Plaintiff-Appellee, v. PARMENTER, FORSYTHE, RUDE & DETHMERS and St. Paul Fire & Marine Insurance Company, Defendants-Appellants. Calendar
• Court: Michigan Supreme Court

Page 858

320 N.W.2d 858

413 Mich. 444

Yvonne BUSH, Widow of Orrin H. Bush, Deceased, on behalf of herself and minor children, Plaintiff-Appellee, v. PARMENTER, FORSYTHE, RUDE & DETHMERS and St. Paul Fire &

Marine Insurance Company, Defendants-Appellants.

Docket No. 64566.

Calendar No. 9.

Supreme Court of Michigan.

Argued May 5, 1981.

Decided June 14, 1982.

McCroskey, Libner, Van Leuven, Feldman, Cochrane & Brock, P. C. by Edward M. Welch, Jr., Battle Creek, for plaintiff-appellee.

Smith, Haughey, Rice & Roegge by Lance R. Mather, Grand Rapids, for defendants-appellants.

WILLIAMS, Justice.

This case concerns a claim for workers' compensation benefits for the death of an attorney who was killed after a seven- to eight-hour deviation from his return trip home from a trust and investment seminar. We are asked to determine whether decedent's injuries arose out of and in the course of employment where the wage earner, following "a night out on the town", was shot to death after resuming a course which would have taken him to his house. We hold that decedent's deviation was so extensive and involved such added risks totally unrelated to his employment that decedent had broken the employment nexus and thus had ended the business nature of his trip prior to his death. Therefore, we reverse the Court of Appeals, 79 Mich.App. 49, 261 N.W.2d 51, decision and vacate the compensation award.

I. FACTS

Orrin H. Bush, an attorney specializing in probate and estate planning, was a partner with defendant law firm Parmenter, Forsythe, Rude & Dethmers. On Tuesday, October 5, 1971, Bush left his office in Muskegon to attend a trust and investment seminar in Grand Rapids, some 40 miles away. The seminar, offered by Old Kent Bank, lasted from approximately 4 p. m. to 5 p. m., when the meeting adjourned to an adjoining room for drinks and light snacks provided to the participants by the bank. Bush remained for the cocktail hour, having an estimated two drinks [Aug. 9, 1973 Hearing, Tr 29-31]. He left the seminar about 6 p. m. and drove back to Muskegon [8/9/73, Tr 32, 35; 9/26/73, Tr 3, 11]. The whereabouts of Bush for the next two hours is unknown. ¹ At 8:15 p. m., he visited Tony's Club, a restaurant-cocktail lounge in Muskegon Heights, ² looking for "two or three fellows". Tony Lakos, the owner of the club, noted that Bush did not have anything to drink at his place, nor did the attorney appear to be intoxicated [8/9/73, Tr 39]. Bush left Tony's Club immediately after learning that his friends had gone across the street to a nightclub called the Nitehawk.

Bush arrived at the Nitehawk sometime before 8:30 p. m. and remained there until the nightclub closed at 2:30 a. m. Wednesday, October 6th. During the six hours at the Nitehawk, Bush had several beers and mixed drinks, danced with two or three women and talked with several patrons [see Appellant's Brief, pp 3-4 and Tr pages cited therein].

After the Nitehawk closed, Bush drove east for six or seven blocks to Alice's Restaurant, arriving between 2:30 a. m. and 2:45 a. m. He was described by witnesses there as "ornery and mean". Although no one stated that Bush was staggering or had slurred speech, it was apparent that he had been drinking [8/2/73, Tr 34; 8/9/73, Tr 82; see Appellant's Brief pp 4-5]. Bush ordered and consumed a hamburger and a cup of coffee. In the course of the meal, Bush attempted to pick a fight with another customer and with the 14-year-old dishwasher. ³ He also annoyed a woman patron, despite her requests to be left alone [8/9/73, Tr 190-191].

Bush also appeared to be forgetful. Upon returning to his seat after the altercation with the customer, he asked the cook for his hamburger and coffee. Despite the fact that Bush had eaten the meal only a few minutes earlier, the cook decided that it would be futile to argue with him, so she cooked a second meal without charge [8/9/73, Tr 88].

Since it was apparent to the employees at Alice's that Bush was in no condition to drive, they tried to get him to take a cab home. At one point they even offered to pay his fare, but he refused [8/9/73, Tr 194]. Bush left the restaurant a little after 3 a. m. Wednesday, October 6, 1971.

At approximately 3:10 a. m., Bush was killed in his car three and one-half miles from Alice's Restaurant by a 12-gauge shotgun blast to the right side of his face and head [8/2/73, Tr 14 and Plaintiff's Exhibits 2 and 3]. No one was ever charged with the murder, but the Muskegon Police Department's theory is that Bush was the victim of an attempted armed robbery by one or more unknown assailants [8/23/75, Tr 6-7, 10]. A blood test taken from decedent indicated a 0.21 percent level of alcohol in his blood at the time of death [8/2/73 Tr 32 and Defendant's Exhibit A].

In June 1974, the referee held that, although Bush's actions at the Nitehawk and Alice's constituted a deviation from his employment, the deviation had ended when Bush left Alice's and drove in the direction of his home. ⁴ "He was finishing his business trip", the referee noted. Therefore, "the death occurred during the course of employment [and] compensation is to be paid" [Appellants' App, 108a].

The Workers' Compensation Appeal Board (WCAB) unanimously reversed in June 1976, holding that the deviation was of such a personal nature and for such an extended period that it terminated the business nature of the return trip home. 1976 WCABO 2962. [Appellants' App, 110a-112a] The Court of Appeals in turn unanimously reversed the WCAB, finding that "[t]he appeal board's somewhat emotional rationale fails to withstand critical analysis". Bush v. Parmenter, Forsythe, Rude & Dethmers, 79 Mich.App. 49, 52, 261 N.W.2d 51 (1977). The court held that "neither the passage of time nor the nature of the deviation proximately contributed to decedent's fatal wound", id., 55, 261 N.W.2d 51, and remanded the case for a factual determination of whether Bush was returning home when he was shot. We denied leave to appeal. 404 Mich. 827 (1979).

On remand, the WCAB confirmed the referee's determination of five years earlier "that decedent was finally on his way home when he was killed" and reluctantly awarded benefits. 1979 WCABO 1356, 1362 [Appellants' App, 124a, 132a]. We denied defendant's application for leave to appeal prior to decision by the Court of Appeals. 407 Mich. 872 (1979). In January, 1980, the Court of Appeals denied leave to appeal in an unpublished memorandum order (Docket No. 45866) [Appellants' App, 140a-142a]. We granted leave at 409 Mich. 946 (1980).

II. ISSUE

This case turns on whether the deviation of decedent Bush was so extensive, in that it lasted for such a long time and incurred substantial increases in danger to decedent unrelated to his employment, that the business character and purpose of the trip dissolved prior to the injury. We hold that the deviation was so extensive that the business character of the return trip had dissolved so that when decedent returned to his homeward course he was no longer in the course of employment.

III. RETURN TRIP FROM SEMINAR WAS WITHIN COURSE OF EMPLOYMENT PRIOR TO DEVIATION

As a prelude to our discussion of the above issue, it might be helpful to review briefly the undisputed facts and establish a legal focal point from which to begin our analysis. As a probate and estate attorney, Bush occasionally found it necessary to attend estate and trust seminars. Defendant law firm encouraged its specialists to attend such seminars and paid for all of the expenses incurred. ⁵ Defendant received a special benefit from the attendance by its attorneys at these seminars: a work force which was informed of the most recent changes in their specialty and kept up to date on the legal service provided by banks, as well as advertising of the firm's competence and interest in the specialty. By encouraging its attorneys to attend these employment-related, educational seminars, defendant was in effect sending Bush on a special mission. See LeVasseur v. Allen Electric Co., 338 Mich. 121, 61 N.W.2d 93 (1953); Stockley v. School Dist. No. 1 of Portage Twp., 231 Mich. 523, 204 N.W. 715 (1925). Cf. Mann v. Board of Education of City of Detroit, 266 Mich. 271, 273, 253 N.W. 294 (1934).

Although the general rule of law is that injuries sustained by employees going to and coming from work are not compensable, Thomas v. Certified Refrigeration Inc., 392 Mich. 623, 631, fn. 3, 221 N.W.2d 378 (1974); Dent v. Ford Motor Co., 275 Mich. 39, 41-42, 265 N.W. 518 (1936); Hills v. Blair, 182 Mich. 20, 26, 148 N.W. 243 (1914), "this is not the ordinary case of an employee going to and from his work but one where the employee was engaged in a special mission in the interest of and at the direction of his employer", LeVasseur, supra, 338 Mich. 123, 61 N.W.2d 93 (emphasis added). ⁶ Travel to and from the special mission is in the course of employment and would normally come within the protection of the Worker's Disability Compensation Act. As Professor Larson noted:

"When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself." 1 Larson, Workmen's Compensation Law, Sec. 16.10, p 4-123 (footnotes omitted).

Therefore, it is undisputed that decedent was within the course of his employment traveling to, attending and returning from the Grand Rapids seminar. The question remains, however, whether decedent was still in the course of his employment after completing a 7- to 8-hour deviation within a few miles of his home.

IV. THE EMPLOYMENT NEXUS MAY BE BROKEN

In reversing the original...