Koschay v. Barnett Pontiac, Inc.

• Decision Date: 09 November 1971
• Docket Number: No. 44,44
• Citation: 191 N.W.2d 334,386 Mich. 223
• Parties: Joseph M. KOSCHAY, Plaintiff-Appellant, v. BARNETT PONTIAC, INC., and Universal Underwriters, Defendants-Appellees.
• Court: Michigan Supreme Court

Page 334

191 N.W.2d 334

386 Mich. 223

Joseph M. KOSCHAY, Plaintiff-Appellant, v. BARNETT PONTIAC, INC., and Universal Underwriters,

Defendants-Appellees.

No. 44.

Supreme Court of Michigan.

Nov. 9, 1971.

Rothe, Marston, Mazey, Sachs, O'Connell, Nunn & Freid, P.C., by Jeanne Nunn, Detroit, for plaintiff-appellant.

Plunkett, Cooney, Rutt & Peacock, by Edward K. Pedersen, Detroit, Jeannette A. Paskin, Detroit, of counsel, for defendants-appellees.

Before the Entire Bench.

PER CURIAM.

Submission of this granted appeal from the administrative Denial of workmen's compensation has concentrated our attention, not upon the merits of plaintiff's claim but upon a developing misunderstanding of the statutorily assigned function of the appeal board and that of the appellate courts when review is obtained pursuant to original section 12 of procedural part 3 of the statute.* The issue here is the same as in 1919, Borck v. Simon J. Murphy Co., 205 Mich. 472, 171 N.W. 470, where the appellant claimant challenged the industrial accident board's opinion. That opinion was quoted by the Court at 473, 171 N.W. at 470:

'Without discussing the testimony which is very long, the board finds:

"(a) That the applicant, at the time he fell down the elevator shaft in the Marquette building, was not at said building on any business of his employer, but that he was there entirely upon his own initiative, and evidently because he had no special work to do, or thought he had no special work to do, in the Telegraph building where he was working, and idly went over to the Marquette building through some idea of his own.

"(b) That at the time he suffered the accidental, personal injury which he did suffer, he was not in the course of his employment and that the accident did not arise out of or in the course of the employment of the applicant."

Having considered appellant Borck's position that (Borck at 474, 171 N.W. at 470):

'In this particular case, to justify a reversal, we do not deem it necessary for the court to find that there is No evidence supporting the conclusion of the board, although we believe such to be the situation, as will be hereinafter pointed out.';

the Court proceeded to posit that which has become a commonplace upon judicial review of administrative decisions granting or denying workmen's compensation. It is that 'The question whether a workman is injured by an accident arising out of and in the course of his employment may be a question of law or one primarily of fact, or a mixed question of law and fact.'

Starting from that firm hypothesis, we find instantly that the question whether Mr. Koschay suffered a compensable injury became by the proofs a pure question of fact. The appeal board therefore, depending upon its view of such proofs, was entitled to conclude either way; that the claimant's disability was compensable, that is, work-connected, or that it was not. The board found against the burden-bearing claimant. Now that he is here for judicial review, he must to sustain his appeal establish to our satisfaction that there was no question of fact and that the proof entitled him to an award As a matter of law. There is no alternative; no room as we shall see for contention that the appeal board reached its conclusion without supporting proof or permissible inference from proof.

In that regard his situation is much more difficult on appeal that it would have been had the board found factually what it expressly said it could not. Now for the findings of fact of the appeal board, apart from the purely legal and procedural discussion appearing in its opinion.

'Plaintiff was a 51-year-old married man with only his wife as a dependent at the time of the hearing. He claimed disability due to a heart condition on May 18, 1966, allegedly resulting from 'excessive and continual heavy work, emotional stress and strain, long hours, harassment and related conditions.'

'Plaintiff's long career in the used car business began in July of 1940 as the sole owner of such a business which he operated until World War II when he worked for Briggs Manufacturing Company upon the government's request to get into essential work. He later went to the service for five months and then returned to the used car business in which he stayed until 1954 when he went into the bar business for nine months after which he sold out and entered the automobile business again and continued until 1960 when he went to work for Woody Pontiac as a new car salesman.

'In July of 1961 plaintiff went back into the used car business and stayed there until December of 1964 when he went to work for Canfield Motor Sales, a Dodge dealership where he sold both new and used cars.

'In March of 1966 plaintiff went to work for Barnett Pontiac, the defendant in this case, as a used car manager appraising the used cars being traded in and getting them ready for retail and wholesale. He had a used car salesman and a porter working under him and he was requested to report to his boss once a month.

'Plaintiff's working hours were Monday, Tuesdays and Thursdays from 9:00 am to 9:00 pm and Wednesdays, Fridays and Saturdays from 9:00 am to 6:00 pm. Business volume was approximately 2,500 cars a year and on a busy day, plaintiff would appraise a maximum of 30 cars. He would show the used cars daily to the three to six dealers stopping to purchase cars for wholesale, bargain with them, arrive at a figure, write out a sales order and take their money or check. During the two months with defendant, plaintiff wholesaled 90 cars each month.

'Plaintiff's job in addition to appraising the cars also involved getting them ready for sale, sending them to the bump shop for needed repairs, driving them and keeping records on the sales.

'After working for about two months for defendant, the morning of May 18, 1966, just before getting up for breakfast, plaintiff complained of severe chest pains and was taken to the hospital where he remained for 22 days for the treatment of an apparent heart attack.

'Plaintiff returned to work for defendant as a new car salesman on September 28, 1966, and worked until January 6, 1967, when he was discharged because of his refusal to purchase a demonstrator. * * *

'Plaintiff testified that during his long years as the sole owner of a used car business he worked at least as hard as in his job with defendant, that his hours were longer and his...