Olree v. White Star Ref. Co.

• Decision Date: 28 October 1930
• Docket Number: No. 82.,82.
• Citation: 252 Mich. 33,232 N.W. 702
• Parties: OLREE v. WHITE STAR REFINING CO. et al.
• Court: Michigan Supreme Court

252 Mich. 33

232 N.W. 702

OLREE

v.WHITE STAR REFINING CO. et al.

No. 82.

Supreme Court of Michigan.

Oct. 28, 1930.

Certiorari from department of Labor and Industry.

Proceedings under the Workmen's Compensation Act by Cornelis J. Olree, employee, opposed by the White Star Refining Company, employer, and the Employers' Liability Assurance Corporation, Limited, insurer. To review an order of the Department of Labor and Industry, denying compensation, the employee brings certiorari.

Affirmed.

Argued before the Entire Bench.

James C. Foster, of Detroit, for appellant.

C. Wilson Gloster, of Detroit, for appellees.

FEAD, J.

This is certiorari to an order of the Department of Labor and Industry, denying compensation.

Plaintiff had been a landscape gardener for the White Star Refining Company about six years. His home and the headquarters of the employer were in Detroit. Defendant operates many gas and oil stations in and out of the city. Plaintiff's work was to care for defendant's stations and properties in the city and out in the state. He had no set hours of labor. He was given an allowance of $35 per month to cover the operation of his own car in traveling. The company makes an allowance because it is cheaper than furnishing cars and its experience had been that company cars did not always get good care. When plaintiff's work was at some distance from Detroit, he stayed overnight in a convenient city. For four weeks he had been engaged at Ann Arbor as foreman of a gang of thirty men, transplanting trees on defendant's property. The whole job would take about six weeks more. He usually worked from 7:30 a. m. to 5:00 p. m. It was his duty to make up the pay roll for his men and report it to his employer each week on sheets furnished by the latter. He carried a time book with him. He went home at night from Ann Arbor and there made up the pay roll sheet each evening from the time book. Sometimes he went to the employer's office before going to Ann Arbor and sometimes when he returned at night. At other times he left from and returned to his home. On November 6, 1928, he finished the day's work at Ann Arbor at about 6:15 in the evening, started for Detroit in his car, and, when going through the village of Elm, was struck by a train and injured. The question is whether the injury arose out of and in the course of his employment.

The case has just enough likeness and unlikeness to adjudicated cases to present another close question, in which the Workmen's Compensation Law seems to abound.

The case does not fall within those in which the employee had stated hours and place of work, so that his employment did not begin until he reached the place and it terminated when he left it. Both generally and on the particular job, plaintiff's employment required him to travel the highways, at the employer's expense, subjected him to the risks of the road, and, under repeated decisions of this court, entitled him to compensation for injuries sustained in traveling if, at the time, he was in the course of his employment. He was on his employer's service on the trip from Detroit to Ann Arbor. Stockley v. School District, 231 Mich. 523, 204 N. W. 715. The specific issue is whether he was in the course of his employment on the trip back.

Our former cases come close, but do not cover the precise situation. Thus, if plaintiff had been injured on the highway while driving to the job, or on his way back to the employer's office to report, to make out time sheets or to do any other definite and required service for the employer, he would be entitled to compensation. Kunze v. Detroit Shade Tree Co., 192 Mich. 435, 158 N. W. 851, L. R. A. 1917A, 252; Stockley v. School District, supra; Widman v. Murray Corporation of America, 245 Mich. 332, 222 N. W. 711.

On the other hand, if he had reached his home city, had left the conveyance which brought him there, had no further ‘authorized or directed’ (Clifton v. Kroger Grocery & Baking Co., 217 Mich. page 464,187 N. W. 380) duty to perform for his employer, even though he might be subject to call for report or advice after reaching home, and had met with an accident through his use of the street as a member of the general public, the injury would not be compensable. Hopkins v. Michigan Sugar Co., 184 Mich. 87, 150 N. W. 325, L. R. A. 1916A, 310; Stocker v. Southfield Co., 244 Mich. 13, 221 N. W. 175, 176. In the Hopkins Case the court stressed the fact that the employee had reached his home city, was afterward injured, and he was in the same position he would have been in if he had not taken the trip.

And if, at the time of the injury, he had been hurt on his way home, at a time when he had left his car to assist another traveler, he would not have been within the course of his employment. Sichterman v. Kent Storage Co., 217 Mich. 364, 186 N. W. 498, 20 A. L. R. 309.

In employment requiring travel, the time and expense necessary to return to the city of employment are elements of the remuneration, and the return home is as much a part of the service as the trip out. Plaintiff's place of employment was Detroit. His expense allowance covered the trip both ways between there and Ann Arbor. At least until he reached Detroit, he was in the course of his employment. The case is analogous to that of the traveling salesman whose work takes him from his home to other cities and who, having called on his last customer, is injured after he starts toward his home town. Defendant White Star Refining Company did not deny this construction of the contract of employment, but at least inferentially, through the manager under whom plaintiff worked, conceded it. The rule is in accord with Haddock v. Edgewater Steel Co., ...