Haggar v. Tanis

Decision Date16 February 1948
Docket NumberNo. 72.,72.
Citation320 Mich. 295,30 N.W.2d 876
PartiesHAGGAR v. TANIS et al.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

Appeal from the Department of Labor and Industry-in the Nature of Certiorari.

Proceeding under the Workmen's Compensation Act by Frank Haggar, claimant, opposed by H. C. Tanis, employer, and the Zurich General Accident & Liability Insurance Company Limited, insurance carrier. From an award of the Department of Labor and Industry in favor of the claimant, the employer and insurance carrier appeal.

Award vacated.

Before the Entire Bench.

Lacey, Scroggie, Lacy & Buchanan, of Detroit, for defendants and appellant.

Fox & Fox, of Kalamazoo, for plaintiff and appellee.

NORTH, Justice.

This is an appeal by defendants, the employer and insurance carrier, from an award of compensation to plaintiff. The sole question presented is this: Did the injury which plaintiff sustained arise out of and in the course of his employment by defendant Tanis? The facts are not controverted.

Plaintiff, Frank Haggar, was employed by defendant Tanis as a fireman to care for several furnaces located in three separate buildings. Five of these furnaces were located in one of such buildings and one in each of the others. Each of the three buildings was located on the east side of S. Burdick Street in the city of Kalamazoo; but it was a distance of four blocks between the most northerly building and the most southerly building, the other being between the two. Plaintiff lived in a room provided for him in one of the buildings, but there was no provision at his rooming quarters for preparation of meals. As to his meals, plaintiff testified: ‘I always went to the restaurant.’ His working hours were from 6:00 or 6:30 A.M. to 9:00 or 10:00 P.M. He testified: ‘The two boilers, I looked at them three times a day; morning, noon and night and the others two hours or oftener if they needed it.’

About 5:00 P.M. on the day of the accident, plaintiff after attending the furnace in the most northerly of the three buildings, located at the northeast corner of S. Burdick and South Streets, went to a restaurant on South Street for lunch. In doing so he crossed from the east side to the west side of S. Burdick Street and proceeded west on the north side of South Street about half a block to the Park Cafe where he ate his lunch. In returning to his work he walked east on the north side of South Street to the northwest corner of the two mentioned streets. He then crossed South Street on the west side of S. Burdick, and waited on the west side of that street at the southwest corner of the intersection for the green light. He then started to cross S. Burdick Street where the accident happened, resulting in seriously injuring plaintiff. He testified as follows:

‘It happened between 5:30 and 6 o'clock at night. * * * I was about midway of the street. * * * There were two cars came from the east and made a left turn and headed me off and I stopped there and was going to turn and go back to the curb and I got struck as I was turning around to look if there was another car. * * * I was going back to the Cedar Dwellings (one of the three buildings) * * * to close the draft on the furnace and check up on the other fires.’

In contending that his injury arose out of and in the course of his employment, plaintiff cites and relies upon the following cases: Kunze v. Detroit Shade Tree Co., 192 Mich. 435, 158 N.W. 851, L.R.A.1917A, 252;Haller v. City of Lansing, 195 Mich. 753, 162 N.W. 335, L.R.A.1917E, 324;Favorite v. Kalamazoo State Hospital, 238 Mich. 566, 214 N.W. 229;Morse v. Port Huron & D. R. Co., 25§ Mich. 309, 232 N.W. 369; and Schlickenmayer v. Highland Park, 253 Mich. 265, 235 N.W. 156. Each of the above cases is distinguishable from the instant case because decision therein hinged upon a finding of one or the other of the following attendant circumstances:

(1) That, if the injury occurred on the street, the employee at the time of the injury was found to have been actually engaged in performing duties incident to his employment.

(2) Or that the injury occurred on the employer's premises over which he had control and while the employee was engaged in conduct which had the express or implied approval of the employer, and which conduct had at least an indirect connection with the employment, even though the employee was attending his personal wants or needs.

Plaintiff also relies upon Thiede v. G. D. Searle & Co., 278 Mich. 108, 270 N.W. 234. But that case is distinguishable from the instant case because it was therein found that the employee, a traveling salesman, who lost his life in a hotel fire, in staying at the hotel “did the usual and natural thing in the course of his employment * * *”; and further, the employer “expected and required its employees to stop at hotels.” In other words, the plaintiff in that case in staying at the hotel when the fire occurred was doing something contemplated and required by his employment.

Plaintiff also calls our attention to two cases from other jurisdictions, but we do not find in them authority in support of the award in the instant case. In Goetz v. J. C. Carson Co., Mo.Sup., 206 S.W.2d 530, the employee, to whose dependents compensation was awarded, as he was leaving a place into which he had gone for a soda, sprained his ankle, from which a pulmonary embolism developed causing his death. His employment was that of collecting accounts for the defendant, and in the discharge of his duties the employee went on foot throughout a large area in the city of St. Louis. Obviously at the time and place of his injury this employee, as in Kunze v. Detroit Shade Tree Co., supra, had not departed from the ambit of his employment. Such is not the fact in the instant case. And it may be noted that in its opinion in the Goetz case, the Supreme Court of Missouri said: ‘* * * it is indeed a close question whether there is evidence sufficient upon which it can be reasonably determined the deceased was injured by accident in the course of his employment.’

in the other case from a foreign jurisdiction upon which plaintiff relies, Cardillo v Hartford Accident & Indemnity Co., 71 App.D.C. 330, 109 F.2d 674, the employee was the driver of a sight seeing vehicle in and about Washington, D. C. For the purpose of getting his noon day lunch he drove the vehicle about two miles from the point where otherwise he would have been waiting for passengers whom he was sent to pick up. On his return to the place where he was to take on the passengers his vehicle overturned and the employee was injured, and he was awarded compensation. But the opinion of the court fairly discloses that plaintiff and other fellow employees commonly drove their vehicles to places where they ate their meals, and this was done with employer's consent. The employing company's president and manager testified:

‘Q. Is it in violation of the company's rules for one of your drivers to use the car in going a short distance for his lunch? A. Well, now, not while he is on a job like that; I would say that there is nothing against it.

‘Q. For instance, if one of your drivers drops a party of passengers at the Congressional Library, he would not be...

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