Lauscher v. Montgomery Ward & Co.

• Decision Date: 03 April 1950
• Docket Number: January Term.,No. 5,5
• Citation: 41 N.W.2d 892,327 Mich. 358
• Court: Michigan Supreme Court
• Parties: LAUSCHER v. MONTGOMERY WARD & CO.

327 Mich. 358

41 N.W.2d 892

LAUSCHER

v.MONTGOMERY WARD & CO.

No. 5, January Term.

Supreme Court of Michigan.

April 3, 1950.

Proceeding under the Workmen's Compensation Act by Jean Lauscher, widow, and Dolores Jean Lauscher, minor, dependents of Norman F. Lauscher, deceased employee, opposed by Montgomery Ward & Company, employer. The Compensation Commission of the Department of Labor and Industry confirmed award of deputy commissioner granting compensation and defendant appealed. The Supreme Court, Reid, J., held that evidence failed to sustain finding of compensation commission that injuries to decedent arose out of and in course of his employment.

Award of compensation commission reversed and matter remanded to commission for entry of award denying plaintiff's claim.

McGinn & Fitzharris, Escanaba, for defendant and appellant, Ballard, Jennings, Bishop & Ellsworth, Lansing, David L. Dickson and Francis D. Roth, Chicago, of counsel.

Robert E. LeMire, Escanaba, for plaintiff, Ray Derham, Iron Mountain, of counsel.

Before the Entire Bench, except BUTZEL, J.

REID, Justice.

Defendant appeals from an award by the compensation commission of the department of labor and industry.

Plaintiff Jean Lauscher is the widow of Norman F. Lauscher, who was employed at defendant company's retail store as a stockroom assistant. At the time of his injury on April 6, 1948, decedent's work consisted of bringing freight from trucks up into the storeroom and from the storeroom down into the various departments in the store. He worked under the immediate supervision of Fred Krause, who was in charge of shipping and receiving in the store. About 5:25 p. m. on April 6, 1948, Krause directed decedent to take a supposedly empty steel drum of 50 gallon capacity, which had contained anti-freeze, from the basement storeroom and place it in an old wooden building used as a warehouse across the alley from the store. The drum or barrel had previously been on the main floor of the store and contained type ‘N’ anti-freeze, a highly inflammable liquid. The drum was marked ‘inflammable.’ The contents of the drum had been withdrawn by means of a pump. It was empty as far as the pump could operate and there was possibly one or two pints of liquid left in the drum which the pump could not reach. Decedent Lauscher brought the empty drum on the elevator to the level of the shipping platform in the alley. He pushed the drum off the platform, letting it fall some four feet to the surface of the alley. The alley was paved with cinders and gravel. The fall of the drum either caused the cap to come off or that the drum should leak in some other way. A small quantity of the anti-freeze spilled onto the alley surface and began rapidly to seep into the ground.

Decedent Lauscher attempted to light, with his cigarette lighter, the liquid thus spilled onto the surface of the alley, but he could not so cause the liquid to ignite. Decedent asked a fellow employee for a match but he had none. Decedent then crumpled a piece of paper and lighted it and by that means, set fire to the small pool of anti-freeze on the ground of the alley. He then picked up the barrel and began to pour the still remaining contents on the small fire which he had just lighted. The drum exploded, blowing out the bottom, and threw a fiery mass onto decedent Lauscher, who ran to a point about 50 feet from the place where the explosion...