Morse v. Port Huron & D. R. Co., 35.
| Decision Date | 03 October 1930 |
| Docket Number | No. 35.,35. |
| Citation | 232 N.W. 369,251 Mich. 309 |
| Parties | MORSE v. PORT HURON & D. R. CO. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Department of Labor and Industry, Compensation Division.
Proceeding under the Workmen's Compensation Act by Julia Morse, claimant, for the death of her husband, opposed by the Port Huron & Detroit Railroad Company, employer. Claimant was awarded compensation, and the employer appeals.
Affirmed.
Argued before the Entire Bench. James E. Duffy, Jr., of Bay City (James E. Duffy, of Bay City, of counsel), for appellant.
Matthews, Hicks & Des Jardins, of Owosso, for appellee.
On Saturday evening, February 2, 1929, Frank Morse was struck by an automobile as he was crossing Pine street on Military avenue in Port Huron, and died from his injuries. Award of compensation to his widow and children is reviewed on the contention that there was no competent evidence that the accident arose in the course and out of his employment.
Defendant operates a terminal railroad in Port Huron. Morse had been its station agent for four years. The general offices of the company were in the second story of the station, which was over two miles from the business center of the city and ten blocks from a street car line leading downtown, on which the service was not good. Morse's duties were not detailed in the testimony, but one of them was to sometimes make deposit of company funds in the bank. Plaintiff claims he was on his way to make such deposit when injured.
At least one other employee also made deposits and used the same bank book. Whether others did, whether deposits by Morse covered only his own collections or included general funds, who made up the deposits, who indorsed the checks for the company, who had custody of the bank book, and from whom and how Morse obtained the book and funds for deposit were not shown. The failure of an employer to fairly disclose relevant and illuminative matters peculiarly within his knowledge warrants an inference that disclosure would not have been favorable to him.
The bank was open an hour on Saturday evenings. Mrs. Morse testified that for about a year, before the accident, after they discontinued the use of their automobile, Morse had made deposits for the company practically every Saturday night. On cross-examination she stated she had accompanied him to the bank at least once a month. An ex-roomer testified that, for several months and up to the preceding October, he had taken Morse to the bank nearly every Saturday night to make the deposits. On cross-examination he could not name specific dates or even months, but was positive of the general practice. The credibility of these witnesses was for the board. The testimony would justify a finding that Morse made a practice of depositing company funds after ordinary working hours frequently on, if not every, Saturday night.
After supper on February 2, Mrs. Morse warned Morse that if he had a deposit to make that night he should be about it, and he said he had. This testimony was competent, not as evidence of his duty to make deposits, but as showing his purpose in leaving the house. 22 C. J. p. 453.
‘Declarations made immediately preceding a particular litigated act, which tend to illustrate and give character to the act in question, are admissible as part of the res gestae.’ 10 R. C. L. p. 978.
After this suggestion from his wife, Morse took the company bank book out of his coat pocket, transferred it to his overcoat pocket, and left his home. He was next seen at the point of accident, a block from the bank, where he was walking across the street intersection on the direct route to the bank. The bank book and checks for deposit were found in his pocket. These facts, taken in connection with his custom, justified the inference that he was on his way to make the deposit when hurt. Defendant's testimony indicating that he may have been on his way to pay an insurance premium merely raised an issue of fact for the board, whose decision thereon is final.
It may be assumed, as contended by defendant, that the custom of Morse to make Saturday night deposits was not sufficiently brought to the knowledge of the employer to justify a finding that, if it was not a prescribed duty, it nevertheless had been approved and ratified as such by acquiescence of the employer in the practice. But, especially because Morse had the duty to make deposits and his actual instructions as to the time therefor were not disclosed by defendant, the custom justified...
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