National Biscuit Co. v. Litzky

• Decision Date: 09 December 1927
• Docket Number: No. 4853.,4853.
• Parties: NATIONAL BISCUIT CO. v. LITZKY.
• Court: U.S. Court of Appeals — Sixth Circuit

56 ALR 853, 22 F.2d 939 (1927)

NATIONAL BISCUIT CO. v. LITZKY.

No. 4853.

Circuit Court of Appeals, Sixth Circuit.

December 9, 1927.

Lewis W. McCandless, of Chicago, Ill. (Stevenson, Butzel, Eaman & Long, of Detroit, Mich., on the brief), for plaintiff in error.

Frank H. Dohany, of Detroit, Mich. (Dohany & Dohany, of Detroit, Mich., on the brief), for defendant in error.

Before DENISON and MOORMAN, Circuit Judges, and HICKENLOOPER, District Judge.

HICKENLOOPER, District Judge.

On February 15, 1925, the defendant in error, plaintiff below and hereinafter referred to as the plaintiff, was employed as "general help" in the factory of the plaintiff in error, hereinafter referred to as the defendant. Plaintiff testified that shortly before 11:30 a. m. on that day she was told by the head forewoman of her floor that her work had not been satisfactory and that she could go, and need not return; that she was discharged. Thereupon, it appears from the evidence, plaintiff went to the lunchroom provided for employees, on the seventh floor of the building, ate her lunch, and took the elevator to descend, as she testifies, to the cloakroom on the second floor. As the elevator started to descend, with at least a capacity load, the electric controls failed to function, and the cab fell to the basement, but at only its ordinary speed or a little faster, When it struck the bottom of the pit, the plaintiff was jarred and thrown to the floor, and suffered physical injury and nervous shock, for which she subsequently recovered a verdict.

It is conceded that the defendant was lawfully operating under the Workmen's Compensation Act of the State of Michigan (Pub. Acts Ex. Sess. 1912, No. 10), and error is assigned to the refusal of the court to give special instructions 1, 2, and 3 requested by the defendant; due exception to such refusal having been taken. The first of these requests assumes that as a matter of law the plaintiff was not discharged; the second, that if discharged, or if the defendant is foreclosed upon this issue by the verdict, the relationship of employer and employee did not terminate, so far as rights and liabilities in connection with personal injuries were concerned, until the plaintiff had had a reasonable time to leave the premises which had not yet expired. Both assume that, if this relationship of employer and employee existed, either through lack of discharge or by extension, then, also, as a matter of law, the action could not be maintained by reason of the Michigan Workmen's Compensation Act.

The first request was properly refused. The court submitted the question of discharge squarely to the jury under instructions to which no exception appears of record. While the evidence is conflicting as to whether notification of discharge was in fact given, there was substantial evidence of such notification. It was for the jury to pass upon the weight and sufficiency of this evidence, and the defendant is concluded by the verdict upon the issue of notification. But, it is contended, even though so concluded by the verdict upon the question of notification, yet the record is wholly devoid of any evidence that the forewoman delivering the notification was authorized to so discharge others, and that it was thus the duty of the court to declare a failure of proof upon the question of discharge and to give the instruction. The evidence does disclose, however, that Miss Sintz, the head forewoman upon the floor where plaintiff worked, and who was identified by the plaintiff as she who issued the discharge, customarily delivered all notices of discharge; the foreman himself not participating in the actual notification. Whether or not this authority was affirmatively vested in the head forewoman by company rule, regulation, or by-law, it is manifest from the evidence that it was customarily exercised by her, and was well within the scope of her apparent authority.

We are of the opinion that this evidence, supported by the positive testimony of the plaintiff that she was thus notified, raised an issue of fact to be submitted to the jury, and that the court cannot say as a matter of law that there was no substantial evidence of authority. The question of notification was apparently treated by court and counsel as alone controlling. No request appears of record to submit to the jury, or otherwise raise, this question of authority at the trial. Under these circumstances the defendant cannot now object to a failure of the court to charge upon this subject, or to the sufficiency or propriety of the instructions given.

The second request, assuming a continuation of the relationship of master and servant after discharge and until the servant has had a reasonable opportunity to leave the premises, leads to a consideration of the Michigan Workmen's Compensation Act. Section 4 of part 1 of this act, being section 5426 of the Compiled Laws of Michigan, provides that "any employer who has elected, with the approval of the Industrial Accident Board hereinafter created, * * * shall not be subject * * * to any other liability whatsoever, save as herein provided, for the death of or personal injury to any employee, for which death or injury compensation is recoverable under this act." (Italics ours.)

Under the provisions of this act the right of the plaintiff to maintain an action is defeated only where compensation is recoverable, and compensation is recoverable only where the injury arises out of and in the course of the employment. Whether, therefore, such rights of the employee and obligations of the employer as arise from the relationship of master and servant do not terminate at the moment of discharge, but exist for a reasonable time thereafter to permit the employee to leave the premises, is immaterial, if, under the Michigan law, the accident here, happening after discharge, is to be held not to arise from and in the course of the employment.

While the courts of various states have differed as to what accidents may properly be considered as arising out of and in the course of the employment, the Michigan cases cited in the note¹ show continuous adherence to the doctrine that the injury must have proximate causal connection with and be the direct result of the performance by the employee of some duty of the employment, and we are of the opinion that attendance at the restaurant of the defendant after discharge cannot be said to have so close a causal connection with or to arise from the pre-existing employment as to bring the present case within the class in which compensation would be allowed under the Michigan act. Whether or not the doctrines of a safe place in which to work, assumed risk, and fellow servant would be applicable under such circumstances we need not inquire. No such issues were raised, no request was made to charge in respect thereto, and no exception appears of record to the charge as given.

The instant case differs from those involving only the existence of the relationship of master and servant, while coming to or going from work, or during the luncheon period (cf. Riley v. Cudahy Packing Co., 82 Neb. 319, 117 N. W. 765, and notes in 23 L. R. A. (N. S.) 954 and 960), and is more closely analogous to those cases in which the...