Haller v. City of Lansing

• Decision Date: 09 April 1917
• Docket Number: No. 29.,29.
• Citation: 162 N.W. 335,195 Mich. 753
• Parties: HALLER v. CITY OF LANSING.
• Court: Michigan Supreme Court

195 Mich. 753

162 N.W. 335

HALLER

v.CITY OF LANSING.

No. 29.

Supreme Court of Michigan.

April 9, 1917.

Certiorari to Industrial Accident Board.

Claim by Mrs. Mike Haller against the City of Lansing, under the Workmen's Compensation Act. Award by the Arbitration Committee was affirmed by the Industrial Accident Board, and the City brings certiorari. Affirmed.

Argued before KUHN, C. J., and STONE, OSTRANDER, BIRD, MOORE, STEERE, BROOKE, and FELLOWS, JJ. Thomas A. Lawler and John F. Berry, both of Lansing, for claimant.

Joseph H. Dunnebacke, of Lansing, for respondent.

STEERE, J.

The return of the Industrial Accident Board to a writ of certiorari issued herein states that it made ‘no written findings of fact or law, or any decision in regard thereto, except such as is contained in Exhibit 8,’ which is a brief order, affirming the award of the committee on arbitration, made on October 9, 1915, finding that this claimant (plaintiff) was entitled to recover from respondent (defendant) the sum of $6.49 per week for a period of 300 weeks from the 29th day of October, 1913, for the accidental death of her husband, Mike Haller, on the 29th day of October, 1913, while in defendant's employ. Various exhibits, copies of orders, etc., and the testimony taken before the committee on arbitration compose the return. Defendant asks reversal chiefly on the ground that the undisputed facts show the accident in question did not arise out of or in the course of deceased's employment because the injuries causing his death were received by him during the noon hour after work was suspended; were the result of his own act in striking a match to light his pipe, which was not a part of his employment, but, on the contrary, entirely foreign to it and outside its scope. While other questions are raised and theories advanced in behalf of defendant, as the case is presented by this record we think the foregoing contention embodies the only proposition calling for serious consideration.

No question of dependency has been raised by defendant, and a fatal accident, at the time and place claimed, is not denied. It is also admitted that at the time of the accident deceased was in defendant's employ as a common laborer, working with others at what is known as the East Side Park in said city. Their work began at about 6:30 in the morning upon the date in question, and the usual time of suspending labor for an hour to take the noon meal was 11:30.

In connection with its street improvements the city of Lansing owned a stone crusher plant, which was then located at East Side Park. Near the west side of the park was a small toolhouse used in connection with the crusher. On the day in question Mike Haller, the deceased, was working with others under a foreman on an elevation in the park some 60 or 70 feet from this toolhouse, engaged in leveling up or grading a place near the crusher for the purpose of receiving stone for paving operations of the following year, the work of paving having been suspended for that season. Haller, who was a Hungarian, had worked on the streets in defendant's employ for some time, but this was his first day at that work. Two acquaintances of his nationality were working there with him. The three Hungarians quit work with the others at near the noon hour when the foreman called the men from labor to take their midday meal. These men had brought their dinner with them as was their custom when working for the city. Of this the foreman under whom they worked testified:

‘If they work at outside work they have to eat dinner wherever they can. * * * Wherever we were working they ate their dinner on the job, wherever it was; if on the street, grading or shoveling, they ate their dinner right there, unless some man happened to live close to the job; then he went home; most of them brought their dinners,’

-stating, however, that it was optional with them, as they had no instruction from the city in reference to it. The day was cloudy and cold, rendering it disagreeable to eat their dinners out of doors, and when work suspended for the noon intermission, the three Hungarians took their dinner pail and went to the toolhouse to eat. The toolhouse was used to store tools and equipment relating to the crusher, including oils, pails of grease, wrenches, pliers, blow torches, etc., and on this day there was a small amount of gasoline in a can under a work bench. The building was provided with a telephone and a stove, resting on brick with a sand foundation. During the morning the foreman of the crusher had built a fire in the stove, and when he left for dinner there was a bed of coals in it, which he banked up with sand and ashes. He left the place unlocked, with the lock hanging in the staple. Very shortly after the three men entered the toolhouse there was an explosion and fire, which destroyed the building. In the explosion Haller received burns which caused his death a few days later.

Haller's two companions, who were not seriously hurt, were the only witnesses to the accident. They both testified that when the three entered the building Haller, who was ahead, seated himself upon a box, and was about to light his pipe when the explosion occurred. One of them, named Ricsak, testified through an interpreter:

‘He says he don't know what really occurred. He was the third man in, and he just came-he came pretty near sitting down when the explosion came and all he saw, the man Mike was trying to smoke his pipe, and he keeled over. He was the last one, so he didn't realize really what it was. He said he saw Mike trying to light his pipe.’

On cross-examination:

‘Q. Ask him to tell how the fire started. A. He don't know how it happened. Q. Ask him if he was in the shanty when the fire took place-when it blazed. A. Sure. He says he went in there and saw him light the pipe, and just as soon as he saw the match just that soon he saw the flame.’

The other man, named Popai, also examined through an interpreter, said:

‘It was quite cold, and they went in to get their dinner. The other fellow went in first and then this man. They had their dinner in one pail, and they boarded at the same place. The other fellow says, ‘I am not going to eat, but I will light my pipe.’ He lit the pipe, and the explosion came.'

On cross-examination:

‘Q. Ask him what he means by an explosion and how it happened? A. He says all he knows, the fellow sat down there on a kind of a box or whatever might have been there, and took his pipe in his mouth and lit a match. That is the only thing he knows.’

Some slight, but we think incompetent, testimony was introduced by defendant to the effect that shortly after the fire it was currently reported deceased had thrown a lighted match into a can of gasoline, and that he had endeavored to throw the contents of the can into the stove; that one or both of these men had so stated to a fellow countryman who interpreted it to the witness; one item of offered evidence was an anonymous letter written in Hungarian, purporting to tell how the accident occurred.

The two eyewitnesses denied any other facts, or knowledge, of the accident except as above stated, and consistently adhered, on direct and cross-examination, to the few graphic facts related by them as to what occurred. There is no evidence in the record which would warrant the Accident Board or this court in finding the facts otherwise.

These salient facts stand undisputed: Deceased was in defendant's employ, working as a common laborer by the day at outside work. He had brought his dinner with him to ‘eat on the job,’ and was there for the day on his employer's premises within the ambit of his employment. It was customary for the men so employed by defendant, at grading and shoveling, to eat their dinners there, wherever they were, at such a spot as they found most convenient and comfortable for that purpose. The day was cloudy, raw, and windy, and the men were working on an elevation. The toolhouse belonged to their employer, was conveniently adjacent, near the bottom of the rise where they were working, and but 60 or 70 feet away. It offered warmth and shelter from the wind, was accessible, and the men had not been forbidden to go there. No place had been provided or pointed out for them to take their meal. It was a natural and apparently innocent and safe thing for them...