Graham v. Somerville Const. Co.

• Decision Date: 13 April 1953
• Docket Number: No. 33,33
• Citation: 336 Mich. 359,58 N.W.2d 101
• Parties: GRAHAM v. SOMERVILLE CONST. CO. et al.
• Court: Michigan Supreme Court

Page 101

58 N.W.2d 101

336 Mich. 359

GRAHAM v. SOMERVILLE CONST. CO. et al.

No. 33.

Supreme Court of Michigan.

April 13, 1953.

Laurence E. Barnett, Hastings, and Leo W. Hoffman, Allegan, for plaintiff and appellee.

L. J. Carey and Geo. J. Cooper, Detroit, for defendants and appellants. Bruce W. Griffin and T. C. Van Sluyters, Grand Rapids, of counsel.

Before the Entire Bench.

CARR, Justice.

The material facts in this case are not in dispute. In July, 1950, the defendant Somerville Construction Company was engaged in the construction of a pipe line for the transmission of gas between Vermontville and Mulliken, a distance of approximately 10 miles. Defendant's employee, Ernest Graham, was in immediate charge of the work as job superintendent. A crew of between 35 and 40 men were employed in the laying of the pipe line, and equipment adapted to the necessary work to be done was used.

It was the duty of the superintendent to supervise the project, including the performance of the necessary labor and the operation of the machinery used in connection therewith. From the time that he came on the job shortly after July 4th to and including July 29th Graham roomed in Hastings, several miles distant from the location where the work was in progress. He was furnished a pickup truck by the employer for his use in performing his duties and for transportation between his rooming place and the site of the pipe line construction.

On the 29th of July, 1950, a ditch digging machine used in necessary excavation broke down. Graham was advised of the fact and discussed with one of the employees on the job the necessiy of obtaining the numbers of the parts of the machine that would require replacement. The employee in question, James Sutton, was living in Nashville. Pursuant to the arrangement made, Graham picked him up about 5:45 in the afternoon and the men drove to the place where the disabled machine had been in use. There the parts necessary to be replaced were examined and respective numbers taken for the purpose of enabling Graham to order new parts. The parties then returned to Nashville where Graham had dinner with Sutton and his wife.

During the evening Graham engaged in social recreation until shortly after 11 o'clock when he left, alone, for Hastings. He was at the time driving the pickup truck furnished him by his employer. While en route the truck left the road at a curve and Graham was killed, death being instantaneous or practically so. His widow, plaintiff herein, filed claim for compensation on behalf of herself and minor children, claiming that the accident arose out of and in the course of Graham's employment. A hearing was had before a deputy commissioner who found that the facts in the case did not support plaintiff's claim. On appeal, the workmen's compensation commission reversed the holding of the deputy and made an award of compensation. On leave granted, the defendants have appealed, claiming in effect that there was no testimony tending to support the commission's finding.

As indicated, the compensation commission came to the conclusion that at the time of the accident Graham was acting within the scope of his employment and that such accident arose therefrom. Emphasis was placed on the nature of his duties and on his right to take Sutton with him from Nashville to the location of the work in progress, for the reason above indicated. For the purposes of the case it will be assumed that while on such mission, and while the parties were returning to Nashville, Graham was acting within the ambit of his employment. However, from the time that he reached the home of Sutton until he departed for Hastings some three or four hours later, it is obvious that he was not in the course of his employment, and no claim is made that he was. The argument advanced on this appeal is in substance that when he left Nashville to go to his rooming house in Hastings he did so as a part of his employment and in the course thereof, and that, in consequence, the fatal accident may be said to have arisen therefrom.

On behalf of plaintiff it is argued that Graham's rooming house was his headquarters and that it was his intention on returning there during the night of July 29th to order the necessary repair parts from a service plant or station maintained by the employer at Ada. The latter claim was considered by the commission and rejected as not a proper inference from the facts shown. In reaching such conclusion, it was said 'Plaintiff attempts to show that her decedent was going to his rooming house in Hastings to make a telephone call to Ada for the necessary parts for the ditching machine so it could be repaired the following day. We are not impressed with that theory because if the deceased had wanted to order the parts that evening he could readily have done so by telephone from Nashville or have driven to his rooming house to telephone earlier in the evening. It is not reasonable to infer that he would wait until such a late hour when the office at Ada was probably closed to order the parts. The only reasonable inference from the facts is that he intended to order the parts on the following day.'

We do not find in the record testimony that can be construed as supporting a conclusion that the rooming house at Hastings was in fact used by Graham as his headquarters. We do not understand from the opinion of the commission that it so found. The keeper of the rooming house, offered as a witness on behalf of plaintiff, testified that she had from 20 to 25 roomers, that Graham used the desk 'phone in making calls, that such calls were put through 'collect', and that on one occasion a party calling for him while he was absent asked that she deliver a message requesting him to call a Grand Rapids operator. It does not appear to whom or for what specific purposes the calls by Graham over the rooming house telephone were made. Neither does it appear that any privileges were given to him not enjoyed by other roomers. Doubtless some calls of a business nature were made in the manner indicated, but such fact does not justify an inference that the rooming house was the headquarters of the work being carried on by defendant Somerville Construction Company. We think the testimony of plaintiff's witness Sutton, who worked on the job, is significant. In describing what the superintendent did, he said:

'Well, he was on the job all day--that is, you know, as far as back and forth, past every little while.'

It is a fair conclusion from the record that Graham's work of supervising the operation was done on the job. Its nature suggests that such must necessarily have been the case. There is no testimony in the record to support an inference or conclusion that the rooming house was in any proper sense of the term his headquarters.

The determination of the question involved in the case necessarily involves the interpretation of the provisions of the statute on which plaintiff's claim in based. C.L.1948, § 412.1, Stat.Ann.1950 Rev.Vol. § 17.151, provides in part:

'An employe, who receives a personal injury arising out of and in the course of his employment by an employer who is at the time of such injury subject to the provisions of this act, shall be paid compensation in the manner and to the extent hereinafter provided, or in case of his death resulting from such injuries such compensation shall be paid to his dependents as hereinafter defined.'

The provision quoted has been considered by this Court in numerous decisions. In Daniel v. Murray Corporation of America, 326 Mich. 1, 9, 10, 39 N.W.2d 229, 231 the prevailing opinion quoted with approval from McNicol's Case, 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306, as follows:

"In order that [compensation may be due] the injury must both arise out of and also be received in the course of the employment. Neither alone is enough.

"It is not easy nor necessary to the determination of the case at bar to give a comprehensive definition of these words which shall accurately include all cases embraced within the act and with precision exclude those outside its terms. It is sufficient to say that an injury is received 'in the course of' the employment when it comes while the workmen is doing the duty which he is employed to perform. It arises 'out of' the employment, when there is apparent to the rational mind, upon consideration of all the circumstances a...