Gacesa v. Consumers' Power Co.

• Decision Date: 02 November 1922
• Docket Number: April Term, 1922.,No. 67,67
• Citation: 190 N.W. 279,220 Mich. 338
• Parties: GACESA v. CONSUMERS' POWER CO.
• Court: Michigan Supreme Court

220 Mich. 338

190 N.W. 279

GACESA

v.CONSUMERS' POWER CO.

No. 67, April Term, 1922.

Supreme Court of Michigan.

Nov. 2, 1922.

Certiorari to Department of Labor and Industry.

Proceeding by Anna Gacesa (Gotches) under the Workmen's Compensation Act (Pub. Acts [Ex. Sess.] 1912, No. 10), for compensation for the death of Louis Gacesa, opposed by the Consumers' Power Company. Award for plaintiff, and defendant brings certiorari. Award vacated.

Argued before FELLOWS, C. J., and WIEST, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.Walter D. Kline, of Jackson (Mechem, Onen & Mechem, of Battle Creek, of counsel), for appellant.

R. G. Leitch, of Battle Creek, for appellee.

FELLOWS, C. J.

Defendant, in June, 1921, was doing certain construction work at its plant in Battle Creek. Plaintiff's husband, a painter, was in its employ. He met with an accident on June 17, resulting in his death, for which compensation was awarded plaintiff. A detailed statement of the facts will be presently made. The foreman of defendant, Mr. Howard, was called by plaintiff as a witness and interrogated as to the employment of deceased, his wage, and the circumstances of his death. Upon cross-examination of this witness over objection of plaintiff's counsel, defendant was permitted to put into the record further details of the employment of deceased, including instructions and orders given him. The Department of Labor and Industry declined to consider this testimony, on the ground that it was equally within the knowledge of the deceased, and that the statute (Comp. Laws, § 12553) had not been waived by plaintiff in calling Mr. Howard as her witness. This ruling presents the first question in the case. We think the Department of Labor and Industry entertained an erroneous view. Plaintiff had called Mr. Howard as a witness and had interrogated him upon a subject equally within the knowledge of deceased, i. e., the employment of deceased, his duties, that he was under the direction of the witness. Having done this, the mouth of the witness could not be closed when he was interrogated further on the subject he had testified about on direct examination. Smith's Appeal, 52 Mich. 415, 18 N. W. 195;Beardslee v. Reeves, 76 Mich. 661, 43 N. W. 677;Lilley v. Insurance Co., 92 Mich. 153, 52 N. W. 631;Fox v. Barrett's Estate, 117 Mich. 162, 75 N. W. 440. In the last-cited case it was said by Mr. Justice Hooker, speaking for the court:

‘There would be little justice in so construing the statute as to permit counsel for the estate to prove a part of a transaction by the claimant's own testimony, and then close the mouth of the witness as to the remainder. That seems to be what was attempted in this case. The court correctly held that, when a subject is gone into under such circumstances, it may be explained fully by the witness on redirect examination; and we are of the opinion that the case before us was within the rule.’

It is also evident that the Department of Labor and Industry concluded that the testimony of defendant's timekeeper was prohibited by the statute. This conclusion is of doubtful propriety (Brennan v. Railroad Co., 93 Mich. 156, 53 N. W. 358;Storrie v. Grand Trunk Elevator Co., 134 Mich. 297, 96 N. W. 569), but as the testimony of the timekeeper was only cumulative of that given by Mr. Howard, we may pass the question. We do not ordinarily consider the rulings of the Department on the admissibility of testimony where there is competent testimony to sustain its finding. We should not here if there was any competent testimony to support the findings. But the rejected testimony here is not only undisputed by any testimony in the record or by any legitimate inference which might be drawn from the testimony in the record, but it is corroborated by all the testimony in the record bearing on the subject. Where undisputed controlling testimony is improperly rejected by the Department of Labor and Industry and the case is brought here on certiorari, our duty is to consider such testimony and apply the proper rules of law to the undisputed facts. We do not weigh and measure conflicting testimony, but where there is no conflict in the testimony, where it is all one way, where there is nothing in any way inconsistent in it, where but one inference can legitimately be drawn from it, the question then becomes one of law which upon certiorari we are bound to decide.

As some of the statements in the findings of the Department of Labor and Industry are without evidential support, we deem it unnecessary to quote the findings, but will state the undisputed facts established by the record. The construction work defendant was doing at Battle Creek included work in the plant and work in what is called an ‘outdoor substation.’ This outdoor substation was inclosed by a fence and was about 200 feet long by about 75 feet wide. It was divided into what are called ‘bays,’ three in number. These bays are not separated by partitions or fences but are distinctly marked, the lines being vertical steel towers and horizontal girders with an intervening space between them of about 15 feet. Within these bays are placed numerous electrical appliances which are highly dangerous when the current is on. There were some of the fixtures and appliances about the plant which the company desired to have painted, and some it did not desire painted. Among the latter were the transformers which it desired to repair before painting. Deceased was not originally employed by Mr. Howard, but was placed under his direction on a Wednesday noon. Before this he had painted on the inside of the plant. The work he was to do under Mr. Howard's direction was in the bays. Before beginning this work Mr. Howard fully cautioned him of the dangerous character of the appliances and warned him not to do work in any other place than where he ordered him to. We quote from his testimony:

‘Q. Mr. Leitch asked you if Mr. Gacesa was supposed to paint both of those storage tanks. What did you tell him to paint? A. The transfer device and storage tank near the west fence.

‘Q. What other instructions did you give him? A. On completing the transfer device he was to begin work on the storage tank, and not to touch anything without seeing me, and to report in the morning before touching anything, and to check out before going home at night.

‘Q. By reporting you meant to report to you? A. Yes, sir, so I could see him before he went to work or in case any changes were made.

‘Q. What if anything did you tell him about the devices in the adjoining bays? A. That they were energized, and a person might be killed by coming in contact with the devices in there, and to keep out of them. I showed him the line of towers.

‘Q. Where were you when you told him that? A. Right by the side of them.

‘Q. Right on the dividing line? A. Yes, sir.

‘Q. What reply, if any, did he make? A. ‘All right,’ or words similar to that.

‘Q. When did you have this talk? A. Wednesday noon before noon.

‘Q. Before he started any work at all? A. Yes, sir.’

A totally disinterested witness testified to hearing a similar conversation on the evening before, and the timekeeper testified that on Friday morning, the morning of the accident, he told deceased not to go to work until he saw Mr. Howard, and that deceased replied, ‘All right, I will get my paint ready.’ Before deceased began his work in the outdoors substation the current was turned off of the appliances in bay No. 3, and he received the instructions above set forth and went to work in that day. The work in bay No. 3 was completed Thursday night. On Friday morning deceased arrived about five minutes before 7 (7 o'clock being his time to commence work), and the conversation with the timekeeper above related took place. Mr. Howard arrived two or three minutes after 7 but saw nothing of deceased, although he looked for him. Some time between 7 and 7:30 deceased was found at the foot of a ladder which had set up against a transformer 15 feet high in bay 2, some three or four rods distant from day 3, where he had been directed to work. There was evidence of fresh paint on the transformer. Deceased had sustained a fractured skull by contact with the cement floor, and there was evidence on his body that he had come in contact with an electric current. He died shortly thereafter.

We, therefore, have before us the question of whether an accident arises out of and in the course of the employment, where it occurs when the employé is in a place where he is, by the orders of his employer, prohibited from going, and when he is doing an act which he has by orders of his employer been prohibited from doing. The courts of this country have not dealt with this question with any degree of frequency. We shall presently refer to some of the American decisions. The question has been before the courts of England under a statute containing like language to ours, and from which statute the language of our statute is taken. We have examined the following English cases: Whitehead v. Reader, [1901] 2 K. B. 48; Weighill v. South Heaton Coal Co., Ltd., 4 B. W. C. C. 141; Jenkinson v. Harrison, Ainslie & Co., Ltd., Id. 194; Harding v. Brynddu Colliery Co., Ltd., Id. 269; Traynor v. Robert Addie & Sons, Id., 357; Conway v. Pumpherston Oil Co., Ltd., Id. 392; Barnes v. Nunnery Colliery Co., Itd., Id. 43 (Court of Appeal), and same case, 5 B. W. C. C. 195 (House of Lords); Mawdsley v. West Leight Colliery Co., Ltd., 5 B. W. C. C. 80; Parker v. Hambrook, Id. 608; Plumb v. Cobden Flour Mills Co., Ltd., 6 B. W. C. C. 245 (Court of Appeal), and same case 7 B. W. C. C. 1 (House of Lords); Tomlinson v. Barrett's, Ltd., 6 B. W. C. C. 489; M'Diarmid v. Ogilvy Bros., Id. 878; Hopley v. Pool, Lorrimer & Tabberer, 8 B. W. C. C. 512; Herbert v. Samuel Fox & Co., Ltd., Id. 94 (Court of Appeal), and same case, 9 B. W. C. C. 164 (House of Lords). We have considered all of these English cases, but cannot within the compass...