Otto v. Chapin

• Decision Date: 24 July 1928
• Docket Number: Jan. Term.,No. 72,72
• Citation: 243 Mich. 256,220 N.W. 661
• Parties: OTTO v. CHAPIN et al.
• Court: Michigan Supreme Court

243 Mich. 256

220 N.W. 661

OTTO

v.CHAPIN et al.

No. 72, Jan. Term.

Supreme Court of Michigan.

July 24, 1928.

Certiorari to Department of Labor and Industry.

Proceeding under the Workmen's Compensation Law by Edward L. Otto, employee, opposed by L. A. Chapin, employer, and the AEtna Life Insurance Company, insurer. Claim for compensation was allowed by the Commission, and the employer and insurer bring certiorari. Award vacated.

Argued before the Entire Bench.Walter S. Foster, of Lansing (Russell A. Searl, of Lansing, of counsel), for appellants.

Thomas, Shields & Silsbee, of Lansing (Clayton F. Jennings, of Lansing, of counsel), for appellee.

NORTH, J.

On December 3, 1926, Edward L. Otto, the plaintiff herein, suffered an injury which resulted in the strangulation of a pre-existing hernia. Asserting this was a compensable accident within the meaning of the Workmen's Compensation Law (Comp. Laws, §§ 5423-5495), he presented a claim, which was allowed by the commission, and the case is in this court on certiorari.

[1] Otto's employer, L. A. Chapin, contracted with dealers and distributors of an automobile manufactured in Lansing to deliver new cars to them across country. The AEtna Insurance Company had issued a policy in 1923 which then covered Chapin's industrial risk. The plaintiff's duties were to be at the factory at Lansing to look after the cars when they came out, prepare them for the road trips, sign up men to drive them, and get them started on the road. Thereupon plaintiff would take an automobile belonging to his employer and go to the place of delivery for the purpose of conveying the drivers back to Lansing. Otto was employed by the week, but seems to have had no regular hours of work, being subject to call at any time. Plaintiff was on duty at the factory on the date of the injury, and he took his employer's automobile at noon to drive to his home for his noonday meal. When he was ready to return to the factory, he attempted to crank the automobile, and, while so doing, the crank slipped and plaintiff was injured in the manner above indicated. After the injury he drove the machine to the factory, but was immediately reconveyed to his home by another employee. The foregoing is plaintiff's statement as to the time, place, and manner in which he suffered his injury. We are of the opinion it conclusively discloses that the accident occurred while the plaintiff was off duty and that his use of his employer's automobile at the time was solely for his own convenience. There is no testimony in the record tending to sustain a different conclusion. Therefore we hold that the injury was not one which arose out of and was incident to the plaintiff's employment, and he is not entitled to compensation, unless the defendants have lost the right to urge that fact as a defense.

[2] In presenting the case to this court, the plaintiff has strenuously insisted that the defendants cannot defend on the ground that the injury did not arise out of and in the course of plaintiff's employment because they failed to comply with rule 4 of the Department of Labor and Industry, wherein it is provided:

‘If the employer denies liability in case where a claim for compensation is filed by an injured employee or his dependents, such denial shall be filed in duplicate with the commission in writing by such employer and shall set forth with reasonable detail and certainty the facts and circumstances upon which he relies as a defense to such claim. Upon the filing of such denial in the office of the commission, a copy of same shall be furnished to the claimant, so that he will have such seasonable information as to the nature and particulars of the employer's defense as may be reasonably necessary to enable him to procure witnesses and prepare for the hearing. Respondents will be limited to the grounds of defense so stated on the arbitration hearing and also on review before the commission: Provided, that in exceptionable causes and for good cause shown respondents may be permitted to amend such denial of liability, which is in the nature of a plea, but such amendment will not be allowed in cases where it would be inequitable or result in surprise to the opposite party. Failure or refusal to seasonably file such denial shall be deemed an admission of...