Chambo v. City of Detroit, Police Dept.

• Decision Date: 24 May 1978
• Docket Number: Docket No. 31292
• Citation: 83 Mich.App. 623,269 N.W.2d 243
• Parties: Norman CHAMBO, Plaintiff-Appellee, v. CITY OF DETROIT, POLICE DEPARTMENT, Defendant-Appellant. 83 Mich.App. 623, 269 N.W.2d 243
• Court: Court of Appeal of Michigan — District of US

Page 243

269 N.W.2d 243

Norman CHAMBO, Plaintiff-Appellee, v. CITY OF DETROIT, POLICE DEPARTMENT, Defendant-Appellant.

Docket No. 31292.

83 Mich.App. 623, 269 N.W.2d 243

Court of Appeals of Michigan.

May 24, 1978.

Released for Publication Sept. 7, 1978.

[83 MICHAPP 624] Kermit G. Bailer, Corp. Counsel, Thomas L. Walters, Asst. Corp. Counsel, Detroit, for defendant-appellant.

Volz & Higle by Charles K. Higle, Madison Heights, for plaintiff-appellee.

Before ALLEN, P. J., and J. H. GILLIS and KELLY, JJ.

PER CURIAM.

Defendant appeals from a Workmen's Compensation Appeal Board (WCAB) decision affirming an award of compensation to plaintiff by the administrative law judge. This case is submitted on a stipulation of facts.

On May 7, 1969, Norman Chambo, a full-time police officer, was in uniform in his own vehicle on the most direct route from his home in Detroit to his duty station also in Detroit. The route took him through part of the City of Dearborn. At about 3:50 p. m., he was involved in an accident in [83 MICHAPP 625] Dearborn. He incurred injuries which forced him off work until September 7, 1969, when he returned to his prior job.

It is a mandatory requirement, subject to Trial Board action that a police officer: (1) Live in the City of Detroit; (2) Carry the city owned weapon with him at all times; (3) Carry the city owned badge with him at all times; (4) Respond to a crime being committed whether on duty or not; (5) Keep himself physically and mentally alert at all times to respond to a call for "help". The wearing of a uniform to and from work, while not mandatory, is recommended and encouraged by the city.

The city has denied liability on the basis that, since he was coming to work, his injuries did not arise out of and in the course of his employment. Mr. Chambo filed a petition for hearing on May 8, 1973. A hearing was held on July 3 & 11, 1974, before an administrative law judge. In a decision dated July 11, 1974, the judge awarded plaintiff benefits of $98 per week from May 8, 1969, to September 6, 1969.

The Workmen's Compensation Appeal Board affirmed the judge's decision on October 26, 1976, in a 3-2 decision. The dissenting opinion would have reversed because Officer Chambo was outside the City of Detroit when the accident occurred.

Defendant made application for leave to appeal to this Court contending that the administrative law judge incorrectly applied the statutory and case law to these facts and reached an erroneous decision. The city further contends that the appeal board erred as a matter of law in granting compensation to Officer Chambo. Defendant's application for leave to appeal was granted April 27, 1977.

Defendant's appeal presents us with an issue of [83 MICHAPP 626] first impression: Is a police officer, in uniform, carrying a city owned gun and badge in his privately owned vehicle on the most direct route between his Detroit residence and his Detroit duty station which takes him through a part of Dearborn, entitled to worker's compensation benefits for injuries sustained in Dearborn while enroute to work? On the narrow scope of the facts presented we hold that the police officer is not entitled to worker's compensation benefits, and reverse the WCAB.

The WCAB determination that plaintiff's injuries sustained in an auto accident arose out of and in the course of employment is a question of law and not conclusive on this Court. Pappas v. Sport Services, Inc., 68 Mich.App. 423, 427, 243 N.W.2d 10 (1976), Lv. den., 397 Mich. 825 (1976).

The issue, while raised for the first time in this state, has been dealt with at the appellate level in other states. The opinions from the various courts are not in agreement.

In Michigan the general rule is that employees going to or from work are not covered by the worker's compensation act. In Burchett v. Delton-Kellogg School, 378 Mich. 231, 236, 144 N.W.2d 337, 339 (1966), an exception to this rule was supplied in the following formula, known as the dual-purpose rule:

"If a special trip would have had to be made if the employee had not combined this service with his going or coming trip, then the dual purpose rule applies."

The dual-purpose rule allows recovery when the employee is still "acting within the scope of his employment, carrying out the orders of his employer, and performing some duty to further the latter's business". Burchett, supra at 235, 144 N.W.2d at 339.

[83 MICHAPP 627] Police officers, because of the nature of their job and since in many cases they are expected to be available 24 hours a day, have been allowed recovery in some jurisdictions. See Warg v. Miami Springs, 249 So.2d 3 (Fla.1971), Sweat v. Allen, 145 Fla. 733, 200 So. 348 (1941), Garzoli v. Workmen's Compensation Appeal Board, 2 Cal.3d 502, 86 Cal.Rptr. 1, 467 P.2d 833 (1970), Jasaitis v. City of Patterson, 31 N.J. 81, 155 A.2d 260 (1959), Mayor & Alderman v. Ward, 173 Tenn. 91, 114 S.W.2d 804 (1938). See generally 1 Larson, Workmen's Compensation Law, § 15.43, pp. 4-60, n.64, § 16.12, pp. 4-105 to 4-106, n.42-43. Other jurisdictions have denied recovery. Walker v. State Accident Insurance Fund, 28 Or.App. 127, 558 P.2d 1270 (1977), Blackley v. Niagara Falls, 284 App.Div. 51, 130 N.Y.S.2d 77 (1954), McKiernan v. New Haven, 151 Conn. 496, 199 A.2d 695 (1964), Simerlink v. Young, 172 Ohio St. 427, 178 N.E.2d 168 (1961). See generally 1 Larson, Workmen's Compensation Law, Supra.

To justify his claim to entitlement of benefits, plaintiff argues that the city has benefited from the requirements of being a police officer in the City of Detroit referred to above. In Stark v. L. E. Myers Co., 58 Mich.App. 439, 443, 228 N.W.2d 411 (1975), Lv. den., 394 Mich. 814 (1975), the court noted that one of the considerations relevant to determining whether an injury to an employee on the way to work was sufficiently employment related was "whether the employer derived a special benefit from the employee's activities at the time of the injury".

The narrow facts of this case refute the benefit argument of the plaintiff. Plaintiff was injured outside the city limits of Detroit, and was not injured while actively participating in police conduct.[83 MICHAPP 628] Under these facts the city did not benefit from having the officer in uniform and on call since he was outside the jurisdiction wherein he could function with the authority of a police officer.

In a Florida case cited by the plaintiffs, Sweat v. Allen, supra, the Supreme Court of Florida upheld a finding of entitlement to worker's compensation granted to a deputy sheriff who was on call all day and night. The sheriff was assigned as an assistant jailer. His regular hours were from 7 a. m. to 7 p. m. One morning while he was walking from his home to a bus line to go to work, he was struck by a dairy truck and was severely injured. Compensation was granted and upheld, the court stating:

"The case at bar is not that of an ordinary workman going to work; for by the very nature of the service the claimant performed, he was continuously intrusted with certain duties, namely, to protect the peace and safety of the community and apprehend those guilty of its violation. His personal life was subservient at all times to call of official service; he was, so to speak, on guard twenty-four hours a day, with no increase in salary in proportion to the time devoted. This high duty of the office rested upon the claimant and was a part of his employment notwithstanding the fact that he was immediately assigned as the jailer, for the word 'employment', as used in the Workmen's Compensation Act, refers to the whole period of time or sphere of activities, regardless of whether the employee is actually engaged in doing the thing he was employed to do. Wirta v. North Butte Mining Co., 64 Mont. 279, 210 P. 332, 30 A.L.R. 964." 200 So. at 350.

See Warg v. Miami Springs, supra, 249 So.2d at 5. Miami Beach v. Valeriani, 137 So.2d 226, 228-229 (Fla.1962).

The Sweat case was not without dissent, however. The dissent was concerned that the plaintiff [83 MICHAPP 629] "was not performing any service growing out of and incidental to his employment". 200 So. at 353. The dissent foresaw the danger of a deputy sheriff recovering for injuries received while at home, a party, or on a personal mission. This is certainly a danger which requires us to emphasize that recovery may be allowed in some instances, but a line must be drawn within reason to avoid absurd results in future cases.

We think the reasoning set forth in a subsequent Florida case which distinguishes Sweat v. Allen, supra, is...