Cumming v. Auto. Crank Shaft Corp., 14.
| Decision Date | 01 October 1925 |
| Docket Number | No. 14.,14. |
| Citation | 205 N.W. 133,232 Mich. 158 |
| Parties | CUMMING v. AUTOMOBILE CRANK SHAFT CORPORATION. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Wayne County; Adolph F. Marschner, Judge.
Action by William Cumming, administrator of the estate of Andrew Kawalinski, deceased, against the Automobile Crank Shaft Corporation. Judgment for defendant, and plaintiff brings error. Reversed, and new trial granted.
Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Dohany & Hersch, of Detroit, for appellant.
Robert M. Brownson, of Detroit (Donald Van Zile, of Detroit, of counsel), for appellee.
An employee of defendant received an injury in the course of his employment, having half of a thumb torn off by an emery wheel. Another employee owned an automobile parked near the factory and volunteered to take the injured man to a hospital, with which defendant had a contract to care for its injured employees. Defendant's superintendent wanted the man so taken, accepted the tendered service, and, by means thereof, the injured employee was conveyed to the hospital. The defendant had no conveyance of its own. On the way to the hospital the automobile struck plaintiff's decedent, causing his death. Claiming death was caused by the negligent driving of the volunteer, while performing such accepted service for defendant, this suit was brought to recover damages. The trial judge directed a verdict in favor of defendant, on the ground that the volunteer employee, while so engaged in conveying his injured fellow employee, was not acting within the scope of his employment, and the superintendent exceeded his authority in the premises, and therefore defendant was not liable for the negligence, if any, of the driver of the automobile.
Defendant employed many men, had an arrangement with the hospital to care for its injured employees, and maintained no conveniences, beyord first aid, for doing so itself. An emergency confronted defendant's first aid man and its superintendent, need of hospital service for the injured employee was evidently deemed imperative, and, instead of calling upon the hospital to send aid or a conveyance, they accepted the service volunteered by the other employee. It appears that the volunteer was in the employ of defendant as a millwright and his time went on while he was away from the plant on this trip.
At the time of the accident defendant's superintendent was in charge of the factory. Defendant's vice president and general manager testified he was not at the factory at the time of the accident; that Mr. McKittrick was superintendent of the plant in complete charge of the workmen; that the company had an arrangement with the Michigan Workmen's Mutual Compensation Insurance Company to care for injured employees, under which the insurance company maintained a hospital to which men, injured in the plant, were to be taken; that he wanted Mr. McKittrick to look after the injured employees as superintendent of the plant in accordance with the arrangement with the insurance company; that Mr....
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Alberts v. Mutual Service Cas. Ins. Co.
...45 S.W.2d 1001; Guitar v. Wheeler, Tex.Civ.App., 36 S.W.2d 325, and no other means are available, Cumming v. Automobile Crankshaft Corporation, 232 Mich. 158, 205 N.W. 133, or if the means available are not in operating condition. Husted v. French Creek Ranch, 79 Wyo. 307, 333 P.2d 948. For......
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Radoccia v. Goodrich Oil Co., s. 8004, 8005.
...case. Stuart v. Doyle, 95 Conn. 732, 112 A. 653; De Nezzo v. General Baking Co., 106 Conn. 396, 138 A. 127; Cumming v. Automobile Crank Shaft Corp, 232 Mich. 158, 205 N.W. 133. See, also, Adams Express Co. v. Lansburgh & Bro, 49 App.D.C. 144, 262 F. 232; Kennedy v. Union Charcoal etc. Co., ......
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Husted v. French Creek Ranch, Inc.
...of the appellant. This made the company liable for his negligent acts while serving the company. See Cumming v. Automobile Crank Shaft Corporation, 232 Mich. 158, 205 N.W. 133; Rice v. Garl, 2 Wash.2d 403, 98 P.2d 301. Nor is the fact that the vehicle used belonged to the employee, or that ......
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Nevins v. Roach
...Kuhartz, 244 Mich. 54, 221 N. W. 143. Plaintiff relies upon Loux v. Harris, 226 Mich. 315, 197 N. W. 494, and Cumming v. Automobile Crank Shaft Corp., 232 Mich. 158, 205 N. W. 133. In the Loux Case the defendant's employee, at the time and place of the accident out of which the suit arose, ......