Calvert v. General Motors Corp., Buick Motor Div.

• Decision Date: 06 January 1983
• Docket Number: Docket No. 59380
• Citation: 120 Mich.App. 635,327 N.W.2d 542
• Parties: Frances M. CALVERT, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, BUICK MOTOR DIVISION, Defendant-Appellant. 120 Mich.App. 635, 327 N.W.2d 542
• Court: Court of Appeal of Michigan — District of US

Page 542

327 N.W.2d 542

Frances M. CALVERT, Plaintiff-Appellee, v. GENERAL MOTORS CORPORATION, BUICK MOTOR DIVISION Defendant-Appellant.

Docket No. 59380.

120 Mich.App. 635, 327 N.W.2d 542

Court of Appeals of Michigan.

Submitted April 8, 1982.

Decided Oct. 19, 1982.

Released for Publication Jan. 6, 1983.

[120 MICHAPP 636] MacDonald, Fitzgerald & MacDonald by John J. Fitzgerald, Flint, for plaintiff-appellee.

O'Rourke, Goldstein, Joseph & Kelly, P.C. by John R. Darin, II, Flint, for defendant-appellant.

Before CAVANAGH, P.J., and MAHER and GLASER, ^* JJ.

PER CURIAM.

Defendant, General Motors Corporation (GM), appeals by leave granted an award of workers' compensation benefits to plaintiff Frances Calvert.

Plaintiff began working for GM on April 22, 1972. Shortly thereafter, she sustained a work-related injury and began to receive workers' compensation benefits. On January 2, 1973, she returned to favored work at a GM production facility.

On September 29, 1977, plaintiff was arrested in the plant parking lot for carrying a concealed weapon. This constituted a violation of the plant rules, and plaintiff was accordingly discharged from her position with GM. Pursuant to the plant grievance procedure, she was reinstated on July 25, 1978.

Plaintiff filed a petition for a hearing on September 20, 1978, claiming benefits for the period between her discharge and her reinstatement. Plaintiff[120 MICHAPP 637] was the only witness at the hearing. She testified that she was arrested by a city police officer in the plant parking lot upon her arrival at work. She was carrying an unloaded pistol in her purse. At the time of the arrest, she held a permit to keep the pistol at home. She was later convicted of carrying a concealed weapon in connection with this incident. Defendant introduced into evidence the plant rules and the notice of violation thereof. The plant rules state in part:

"BUICK SHOP RULES

"Working at Buick is, in one sense, like driving an automobile. Rules are needed to avoid trouble. By understanding them you know what is expected of you and also what you can expect of others. By observing them you will enjoy your work more, gain the cooperation of your fellow employees and open the door of opportunity to you. They represent the best way for you, for your fellow employees and for your Company to carry on a satisfactory relationship. Here are a few rules that will help you avoid "collisions" at Buick. Committing any of the following will be grounds for disciplinary action ranging from reprimand to immediate discharge, depending upon the seriousness of the offense in the judgment of Management.

* * *

"RULES RELATING TO ILLEGAL AND FRAUDULENT ACTS

* * *

"35. Possession of weapons on Company premises at any time."

The hearing referee ruled that plaintiff was entitled to the benefits she claimed, on the ground that she was "[n]ot guilty of conduct that would cause the suspension of her compensation. Plaintiff is not guilty of an act of moral turpitude within the meaning of law. Possession of a gun cannot be [120 MICHAPP 638] construed to be 'base', 'vile' or 'depraved ' conduct." (Emphasis in original.)

The Workers' Compensation Appeal Board affirmed. We set forth its opinion below:

"The facts of this case are not disputed: Plaintiff had a 1972 wrist injury at work, had surgery, and continued thereafter working on a restricted basis. On September 29, 1977, she was found to have an unloaded gun in her purse in defendant's parking lot, was arrested and eventually convicted of carrying a concealed weapon. She was accordingly discharged for violating a plant rule, and reinstated on July 31, 1978, working uneventfully since.

"The sole issue is whether the act of carrying the concealed weapon (for which she had a permit had she kept it at home) which justified the discharge, also obviates the employer's obligation to pay compensation to a partially disabled employee when work is withdrawn from her.

"The assigned judge ruled plaintiff's conduct was not that of moral turpitude, and that it thus did not bar her receipt of compensation. The defendant appeals. We affirm.

"The question really posed involves the application of 'moral turpitude' as that term arises from Todd v Hudson Motor Car Co, 328 Mich 283; 43 NW2d 854 (1950) specifically limited by the court to its facts, and Garrett v Chrysler Corp, 337 Mich 192; 59 NW2d 259 (1953). Legal dictionary discussion (Black's) which defendant pejoratively asserts the judge relied upon, says the term is

"commonly defined as an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow man or to society in general * * * ' and goes on to construct

a line roughly between malum in se and malum prohibitum acts. However, defendant responds that Todd's act of moral turpitude was simply gambling, a malum prohibitum act, and that imposition of a difficult standard of moral turpitude places the partially disabled employee effectively beyond normal employer sanctions for misbehavior. [120 MICHAPP 639] Defendant further argues that a concealed weapons conviction is a more serious criminal charge than gambling (Todd ), or drunkenness (Garrett ).

"As we view this case, we agree with the judge that carrying an unloaded gun, no matter how illegal, is not a base, vile or depraved act. We note that Todd, Garrett, and DePew v GMC, Chevrolet, 1979 WCABO 2787 (drug possession in the plant) all involved acts both disruptive of the defendant's operation and turpitudinous in nature. It does appear that such considerations are part of the motivation of the Court in Todd and Garrett, and the Board Panel in DePew.

"In this case the charge was criminally serious, but was not a malum in se act, and was not disruptive of the plant operation. That it may well have been grounds for discharge we do not doubt, but we do not believe it to have been a morally turpitudinous act as the Todd and Garrett Court meant that term.

"Thus we are simply left with a situation where a partially disabled employee did not have work within her capacity provided her, and for such period of time she is entitled to workers' compensation (Powell v Casco Nelmor Corp, 406 Mich 332; 279 NW2d 769 [1979] )."

On appeal, defendant contends that the Appeal Board applied an erroneous standard in determining that plaintiff had not committed an act of misconduct sufficiently serious to warrant forfeiture of her right to workers' compensation benefits. Hence, resolution of this case requires this Court to define the proper standard.

Thirty-two years ago, the Supreme Court handed down its decision in Todd v. Hudson Motor Car Co., 328 Mich. 283, 43 N.W.2d 854 (1950). The Todd Court had to decide "whether a partially disabled employee who had been given lighter work is entitled to be awarded compensation after his discharge for gambling". Todd, supra, p. 284, 43 N.W.2d 854. The Court held that the claimant was not entitled to benefits, and summarized its reasoning as follows:

[120 MICHAPP 640] "It is the duty of a disabled employee to co-operate not only by accepting tendered favored employment which he is physically able to perform (Kolenko v United States Rubber Products, Inc, 285 Mich 159, 280 N.W. 148), but also by refraining from criminal conduct destructive to the morale of his fellow employees and his employer's business. Where he engages in criminal gambling activities while at work and is discharged for that cause, he will not be entitled to compensation for the resultant loss of earnings. His favored employment has ceased through his own volition and turpitude and not by reason of his accidental injury.

"In the case at bar, lighter work at earnings equal to or greater than received at the date of injury was made available to plaintiff. It was not through physical inability to perform the work, arbitrary caprice of the employer, or some ordinary cause of dismissal that this employment was terminated. Plaintiff was discharged for gambling activities forbidden by law, which were in no wise in furtherance of the duties of his employment." Todd, supra, p. 289, 43 N.W.2d 854.

Garrett v. Chrysler Corp., 337 Mich. 192, 59 N.W.2d 259 (1953), afforded the Supreme Court another opportunity to address this area of the law. In Garrett, the Court held that an employee's discharge for "voluntary drunkenness" justified forfeiture of benefits:

"In the Todd Case, we say, [328 Mich.] at page 289 :

" 'Where he [the disabled employee given favored employment] engages in criminal gambling activities while at work and is discharged for that cause, he will not be entitled to compensation for the resultant loss of earnings.'

"We consider that the instant case falls within the reasoning in the Todd Case. Plaintiff Garrett was being furnished with suitable employment at no wage loss. His voluntary drunkenness was the reason for his discharge, and not his physical condition resulting from his injuries. His several voluntary acts of drunkenness, [120 MICHAPP 641] indicating and caused by his moral turpitude, deceasing his efficiency as an employee, detrimental to the morale of his fellow employees and subversive of the employment, were the efficient cause of the termination of his employment." Garrett, supra, p. 194, 59 N.W.2d 259.

The foregoing passages from Todd and Garrett have given birth to the notion, reflected in the Appeal Board's opinion in the instant case, that an employee discharged for misconduct does not forfeit thereby the right to benefits unless the misconduct involves "moral turpitude".

In Bower v. Whitehall Leather Co., 412 Mich. 172, 187-189, 312 N.W.2d 640 (1981), the Supreme Court recognized the current state of confusion in the law but did not attempt to rectify the situation:

"To determine whether benefits should be awarded in the context of the special facts of these interruption-of-work cases, Michigan courts developed a corollary to the physically capable...