Phillips v. Fitzhugh Motor Co.

• Decision Date: 03 April 1951
• Docket Number: No. 48,48
• Citation: 46 N.W.2d 922,330 Mich. 183
• Parties: PHILLIPS et al. v. FITZHUGH MOTOR CO. et al.
• Court: Michigan Supreme Court

Page 922

46 N.W.2d 922

330 Mich. 183

PHILLIPS et al. v. FITZHUGH MOTOR CO. et al.

No. 48.

Supreme Court of Michigan.

April 3, 1951.

L. J. Carey, Geo. J. Cooper, Detroit, for appellants.

McGinty & Bielawski, Bay City, Warner & Hart, Lansing, of counsel, for appellee.

Before the Entire Bench.

NORTH, Justice.

The pertinent facts in the instant case are accurately stated in the opinion of Mr. Justice Sharpe, but I cannot agree with his conclusion as to the legal aspect of the case. Instead I am of the opinion it conclusively appears from the uncontradicted facts that the injury to and the ultimate death of the employee, Roy Phillips, did not arise out of or in the course of his employment. Without making reference to numerous Michigan decisions in accord herewith, it seems adequate to cite our comparatively recent decision in Daniel v. Murray Corp., 326 Mich. 1, 39 N.W.2d 229. In that case the controlling aspect of the law applicable to the instant case was quite exhaustively considered; and as a matter of law in the light of the Daniel case the commission's award of compensation to plaintiffs herein should be vacated and the proceedings dismissed, with costs to defendants. The case is remanded for entry of an order denying compensation.

REID, C. J., and BOYLES, DETHMERS, BUTZEL, and CARR, JJ., concurred with NORTH, J.

SHARPE, Justice (dissenting).

This is an appeal by defendants in a compensation case in which an award was made to plaintiffs who are the widow and two minor children of the deceased employee.

Deceased, Roy Phillips, started work for the Fitzhugh Motor Company as sales manager in January 1946. After the shortage of new cars developed, he was asked to operate the parts department, but when new cars were available, deceased was again made sales manager. At the time of Mr. Phillips' injury and death, he was not only sales manager, but also manager of the parts department and in charge of used cars. He had no regular working hours and received a weekly wage of $65. In addition to his salary and bonus, deceased was furnished a company car which carried a dealer's license plate.

The compensation commission found as a fact: 'In his capacity as sales manager, Mr. Phillips had a list of defendant's customers who had ordered but had not as yet received new cars. Mr. Walter D. Fitzhugh, the owner of the Fitzhugh Motor Company, had been sick and away from his business for a period of time so was not familiar with the list of prospective new car purchasers. On June 9, 1949, he advised the deceased to clarify the list so it could be readily determined who the customers were that had ordered new automobiles and made a deposit but had not received automobiles. Mr. Fitzhugh wanted to have it in such shape that he could understand it in the event something happened to the deceased. The deceased told him that he would go down that evening and get started on the revision of the list. The deceased also arranged with George Nash, a mechanic, to do some work on the seats of a used car which was for sale. On the night of June 9 the deceased, driving the company car, picked up Mr. Nash at his home and drove to the defendant company's garage. Nash worked on the car seats and the deceased worked on the car list. The two men quit work at about 12 o'clock midnight. The deceased drove Nash home. After leaving Nash at his home, the deceased while driving on State Street in Bay City, on the route he would take to his home, was involved in the automobile accident which resulted in his death. The accident occurred at about 12:30 in the morning of June 10, 1949.'

The compensation commission awarded plaintiffs compensation at the rate of $23 per week and $628 for the expenses of deceased's last illness and burial. Upon leave being granted, defendants appeal and urge that the commission erred as a matter of law by holding that the fatal injury to deceased on a public highway, while on his way home from work, arose out of and in the course of his employment.

It is the accepted rule that in order to entitle the injured person to compensation under the act, the injury must arise out of the employment and in the course of the employment.

In Murphy v. Board of Education of the School District of the City of Flint, 314 Mich. 226, 22 N.W.2d 280, 282, we quoted with approval from Meehan v. Marion Manor Apartments, 305 Mich. 262, 9 N.W.2d 534, where Justice Chandler, speaking for the court, stated the issue involved in the following language: 'The only question presented by the appeal is whether the accident resulting in death arose 'out of' deceased's employment as required by 2 Comp.Laws 1929, § 8417 Stat.Ann. § 17.151. An accident, to be compensable, must be one arising 'out of' as well as 'in the course of' the employment. Appleford v. Kimmel, 297 Mich. 8, 296 N.W. 861. To arise 'out of' the employment the injury sustained must have a causal connection with the work to be performed; it must be one which follows as a natural incident to the employment, be connected with it, and not the result of a risk disassociated therefrom. See Appleford v. Kimmel, (supra); Dent v. Ford Motor Co., 275 Mich. 39, 265 N.W. 518; Rucker v. Michigan Smelting & Refining Co., 300 Mich. 668, 2 N.W.2d 808.'

It is the rule that ordinarily injuries to an employee while going to or from work are not regarded as arising out of and in the course of his employment so as to bring him within the provisions of the act. For cases in this group see: Hopkins v. Michigan Sugar Co., 184 Mich. 87, 150 N.W. 325, L.R.A.1916A, 310; Lipinski v. Sutton Sales Co., 220 Mich. 647, 190 N.W. 705; Dent v. Ford Motor Company, 275 Mich. 39, 265 N.W. 518; Shane v. Alexander, 277 Mich. 85, 268 N.W. 821; Furino v. City of Lansing, 293 Mich. 211, 291 N.W. 637; Simpson v. Lee & Cady, 294 Mich. 460, 293 N.W. 718; Murphy v. Board of Education of the School District of Flint, 314 Mich. 226, 22 N.W.2d 280; Haggar v. Tanis, 320 Mich. 295, 30 N.W.2d 876; State Treasurer v. Kaiser-Frazer Corporation, 326 Mich. 715, 40 N.W.2d 776; Stocker v. Southfield Co., 244 Mich. 13, 221 N.W. 175; Hills v. Blair, 182 Mich. 20, 148 N.W. 243; Reed v. Bliss & Van Auken Lumber Co., 225 Mich. 164, 196 N.W. 420; Pearce v. Michigan Home and Training School, 231 Mich. 536, 204 N.W. 699; Otto v. Chapin, 243 Mich. 256, 220 N.W. 661; Daniel v. Murray Corporation of America, 326 Mich. 1, 39 N.W.2d 229.

It is also the rule that in cases where the contract of employment includes conveyance of the employee to or from his place of work, an accident arising out of such transportation and resulting in an injury to the employee is compensable. See Konopka v. Jackson County Road Commission, 270 Mich. 174, 258 N.W. 429, 97 A.L.R. 552; Chrysler v. Blue Arrow Transport Lines, 295 Mich. 606, 295 N.W. 331.

No hard and fast rule can be laid down to cover all situations, but as a general rule, employees who suffer injuries in going to or returning from their place of work are excluded from the benefits of the act, but there are exceptions to this rule. An exception to the above rule is found in cases where the employee is on his way home after performing or on the way home to perform some special service or to discharge some duty incidental to the nature of his employment or in the interest of or under the direction of his employer. In such cases, an injury arising en route from the home to the place where the work is to be performed or from the place of performance of the work to the home is considered as arising out of and in the course of his employment.

In Favorite v. Kalamazoo State Hospital, 238 Mich. 566, 214 N.W. 229, 230, plaintiff was employed by defendant hospital as a nurse with regular hours of work from 8 a. m. to 8 p. m., but subject to call at any time and could not absent herself from the grounds after 10:30 p. m., without permission. She and other nurses lived in a dwelling on the hospital grounds about 20 rods from the building where she worked. After quitting work at 8 p. m., on the day in question she started to go to her room and in so doing slipped on an icy sidewalk connecting the hospital and the dwelling. We there said: 'The nurses' home on the hospital grounds was provided as a place in which these employees should live. It is apparent that one of the purposes of maintaining it was to secure the proximity of the nurses to the building in which those under their care were kept, so that they might quickly respond to a call at other than their regular hours of work. It was for this reason that their contracts of employment required them to remain at the home during certain hours when off duty. It seems clear that, while going to and returning from the home, plaintiff was in the ambit of her employment.'

In Reisinger-Siehler Co. v. Perry, 165 Md. 191, 167 A. 51, 53, one Perry was employed to look after the building of his employer. His regular hours of employment were from 6 a. m., to 6 p. m., but he was subject to call at any time. On the day in question, Perry by permission of his employer stopped work at 4:30 p. m., to make a social call. He returned home about 11:30 p. m., and was told by neighbors that a policeman wanted to see him concerning the store. He went to the store where he found the lights on and the back door open. He locked up the store and while on his way home was injured while crossing a street. The State Industrial Accident Commission awarded Perry compensation. Upon appeal, the court of appeals said:

'The record does not disclose any express agreement between him and his employer relative to the duties that he was to perform, or the remuneration he was to receive. Under his regular employment, his duties were to remain at the store during the day; but, in addition to this, he was, as we have said, when at home, subject to further duties when called upon. The times when these duties were to be performed were uncertain, as he was to go to the store only when unusual...