Conklin v. Indus. Transp., Inc.

• Decision Date: 08 October 1945
• Docket Number: No. 30.,30.
• Citation: 20 N.W.2d 179,312 Mich. 250
• Parties: CONKLIN et al. v. INDUSTRIAL TRANSPORT, Inc., et al.
• Court: Michigan Supreme Court

312 Mich. 250

20 N.W.2d 179

CONKLIN et al.

v.INDUSTRIAL TRANSPORT, Inc., et al.

No. 30.

Supreme Court of Michigan.

Oct. 8, 1945.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act on the claim of Grace E. Conklin and others, respectively as widow and minor children of V. Reynold Conklin, deceased, for death benefits, opposed by Industrial Transport, Inc., employer, and State Accident Fund. From a decision of the Department of Labor and Industry awarding death benefits and reversing a decision of the deputy commissioner, who denied compensation, the employer and the Fund appeal in the nature of certiorari.

Award vacated.

Before the Entire Bench.

Richardson & Burwell, of Lansing, for plaintiffs.

Harry F. Briggs, of Lansing (Roy Andrus, of Lansing, of counsel), for defendants.

STARR, Chief Justice.

Plaintiff Grace Conklin is the widow, and other plaintiffs are the minor children, of V. Reynold Conklin, who was fatally injured in an authomobile accident on April 2, 1944. The deceased and his brother, Lloyd Conklin, were both employed as truck drivers by defendant transport company. On Saturday, april 1st, the brothers, each driving a truck loaded with military equipment, left the terminal of the transport company in Lansing, their destination being the Erie proving grounds near Toledo, Ohio. They followed the route of highway No. 127 to Jackson, Nos. 50 and 52 to Adrian, No. 56 to Toledo, and highway No. 2 from there to the providing grounds. They arrived at their destination early Sunday morning, their trucks were unloaded, and they started on the return trip to Lansing over the same route. On the way they decided to visit their friend, Ben Burch, who lived on a farm on Tuttle road near Mason, about a mile from highway 127. When they reached the intersection of Tomlinson road and highway 127, Sunday afternoon, they turned west on Tomlinson and proceeded one mile to Tuttle road. They then turned north on Tuttle and had gone about half a mile, when the brother, Lloyd, who was ahead, saw their friend Burch beside the road and stopped his truck. The truck driven by deceased crashed into the rear of Lloyd's truck, and deceased sustained injuries resulting in his death a few days later.

Plaintiff Grace Conklin filed application for adjustment of claim. Defendants answered, contending that the deceased's injuries did not arise out of and in the course of his employment. The matter was heard before a deputy commissioner, who denied compensation. On review the department reversed the deputy and awarded compensation to plaintiffs for total dependency. Having obtained leave, defendants appeal.

Defendants claim that decedent's deviation from his regular route to visit his friend, Burch, was not within the scope of his employment, and that his fatal injuries while on such deviation did not arise out of and in the course of his employment. The brother, Lloyd, testified that on 10 to 15 previous round trips to the Erie proving grounds they had followed highway 127 between Lansing and Jackson, except that in some instances, when near or entering Lansing, they had turned off to stop at an eating place. He said that they were paid on a mileage basis, but the record does not show the route or distance used by the company in computing the mileage. He further testified:

‘Q. Now when you got to the Erie proving grounds and unloaded your load, what was your job then? A. My job was to get our trucks back to Lansing to the Industrial Transport Company terminal. * * *

‘Q. Were you given any directions as to the return route to Lansing? A. No. * * *

‘Q. Was there any specific time in which you were to return that truck to the Industrial Transport Company terminal in Lansing? A. No. * * *

‘Q. On your return route, you came back the same general way? A. Yes.

‘Q. * * * Had you ever left any of those highway on your return trip? A. No. * * *

‘Q. * * * Now when you turned off U. S. 127 what was your purpose? A. To visit Ben Burch. * * *

‘I remember of asking that we go * * * and see Ben, and my brother agreed to do it. * * *

‘Q. And what occurred * * * after you had proceeded a half-mile on Tuttle road? A. Well, I did not recognize Ben's place and went by the place. He stood by the road and * * * as I went by he called to me and I stopped. * * *

‘Q. Then what happened? A. Well, as to that I can not say except there was a crash. * * *

‘Q. And what did you find? A. Found my brother smashed, the truck smashed and him in it. * * *

‘Q. Now when you * * * turned off 127 one mile to the north (west) and one-half mile to the west (north), were you or were you not traveling in the general direction of Lansing and the terminal of the Industrial Transport Company? A. That is right. * * *

‘Q. Did you at the time decide what route you were going to follow from Ben Burch's across to the terminal in Lansing? A. No. * * *

‘Q. That is the only reason you turned off at Tomlinson road, to go and see Ben Bruch? * * * A. That is right. * * *

‘Q. Were you ever tole that you could not drive off that route? A. No. * * *

‘Q. Did you have any business for the employer that would take you over to Ben Burch's place on this Sunday? A. No.’

There was testimony indicating that the routes which the brothers could have taken to the transport company's terminal in Lansing, by way of the Burch farm, were from 2 to 4 1/2 miles longer than their regular route, by way of highway 127. In its opinion awarding compensation the department said:

‘The employer had definitely not specified a particular route over which the trip was to be made; neither had the employer designated any certain time that the trucks should be returned to its terminal at Lansing. * * * There was no need for haste. * * * At the time of the injury the boys were driving in a northwesterly direction. That was in the direction of the employer's terminal. * * * In choosing the route of travel, which undoubtedly they were permitted to do, they could have chosen any one of several good roads leading from the vicinity of Mason to Lansing. * * *

‘By failure to specify a particular route it would seem the employer impliedly consented that the deceased and his brother could select any feasible route. Under such circumstances there would be no deviation even though the shortest route of travel was not selected. * * * He had only one duty to perform, that is, to bring the empty truck to the Lansing terminal. It was while he was engaged in the performance of that task that the accident occurred.

‘We find that...