Furino v. City of Lansing
| Decision Date | 19 April 1940 |
| Docket Number | No. 24.,24. |
| Parties | FURINO v. CITY OF LANSING. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Department of Labor and Industry.
Proceeding under the Workmen's Compensation Act by Michael Furino, claimant, opposed by the City of Lansing, a municipal corporation. From an award of the Department of Labor and Industry, the City of Lansing appeals in the nature of certiorari.
Award vacated.
Argued before the Entire Bench.
Joseph W. Planck, of Lansing, for appellant.
Hubbard & McCullough, of Lansing, for appellee.
The question presented by this appeal is whether there is any testimony to sustain the finding of the Commission that plaintiff's injury arose out of and in the course of his employment. He was one of several employees engaged by the City of Lansing in its street work. Their regular midday hour off from work was from 11:30 A. M. to 12:30 P. M. On the day of the accident plaintiff and two of the other employees seemingly left the place where they were working very shortly before 11:30 A. M., and started in the automobile of their foreman, Henry Leeper, to go some distance to the city shed where plaintiff had left his noonday lunch. On the way Leeper's automobile driven by him came into collision with another automobile, and plaintiff's injury for which he seeks compensation resulted. According to plaintiff's testimony this collision occurred ‘about 11:25’. But regardless of the exact minute at which the accident occurred, the undisputed testimony is that it occurred after plaintiff and his two fellow employees had finished their forenoon's work and had gone a substantial distance from the place of employment. One of these fellow employees, as a witness for plaintiff, testified:
Plaintiff had previously testified:
‘
* * *
In riding on his way to his noonday lunch with Mr. Leeper, plaintiff was in no different status than as though he had walked, thumbed a ride with a stranger, or taken a city bus. The accident happened after plaintiff and other employees had quit their work for the noon hour; and it happened at a point remote from plaintiff's place of employment. In the latter aspect the instant case must be distinguished from Haller v. City of Lansing, 195 Mich. 753, 162 N.W. 335, L.R.A.1917E, 324. At the time of the accident plaintiff was doing nothing in which the city was concerned. The record shows that each of the employees on this job went where he saw fit for his noonday meal and that some of the employees ate in one place, some in another, and each chose his own method in going from and returning to the place where they were actually working. Plaintiff, like the other employees, entirely ceased performing any part of his service to the city when he left the place where he and the others had worked duringthe forenoon. There is no testimony in this record justifying the conclusion that the accident arose out of and in the course of plaintiff's employment.
And it conclusively appears from this record that incident to plaintiff's employment it was neither expressly nor impliedly understood he would be provided by defendant with transportation to or from the place where plaintiff ate his noonday lunch. In conveying plaintiff to the place where he was to eat, Mr. Leeper was merely doing a friendly act. Spooner v. Detroit Saturday Night Co., 187 Mich. 125, 153 N.W. 657, L.R.A.1916A, 17. He received no pay from the city for the use of his automobile. He was not complying with any requisite either expressly or impliedly incident to plaintiff's employment by way of furnishing transportation. It is in this particular that Konopka v. Jackson Co. Road Commission, 270 Mich. 174, 258 N.W. 429, 97 A.L.R. 552, is clearly...
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