Rector v. Ragnar-Benson, Inc.

• Decision Date: 07 January 1946
• Docket Number: No. 7.,7.
• Citation: 313 Mich. 277,21 N.W.2d 129
• Parties: RECTOR v. RAGNAR-BENSON, Inc., et al.
• Court: Michigan Supreme Court

313 Mich. 277

21 N.W.2d 129

RECTOR

v.RAGNAR-BENSON, Inc., et al.

No. 7.

Supreme Court of Michigan.

Jan. 7, 1946.

Appeal from the Department of Labor and Industry.

Proceeding under the Workmen's Compensation Law, Comp. Laws 1929, § 8407 et seq., by Mary A Rector, legal guardian of Mary Rector, and others, minor children of Louis Rector, deceased, opposed by Ragnar-Benson, Incorporated, employer, and the Massachusetts Bonding & Insurance Company, insurance carrier. From an award of dependency compensation of the Department of Labor and Industry, the employer and insurance carrier, on leave granted, appeal in the nature of certiorari.

Award vacated.

Before the Entire Bench.

Alexander McCaslin, Cholette & Buchanan, and E. D. Alexander, all of Detroit, for appellants.

Linsey, Shivel, Phelps & Vander Wal, of Grand Rapids, for appellees.

BOYLES, Justice.

Plaintiff, as guardian of the minor children of one Louis Rector, filed an application with the Department of Labor and Industry for dependency workmen's compensation, claiming that Mr. Rector met his death while in the employ of the defendant Ragnar-Benson, Inc., and that the injury resulting in his death arose out of and in the course of his employment. A deputy commissioner of the department heard the matter and denied compensation. On review by the department, a majority of the compensation commission (three members) reversed the deputy's order and awarded dependency compensation. On leave granted, Ragnar-Benson, Inc., and its insurance carrier appeal to this court and the only question urged for reversal is that there is no competent evidence to support the finding that the injury resulting in the death arose out of and in the course of the employment.

Plaintiff's decedent was a truck driver hired by the defendant Ragnar-Benson, Inc., to haul sand for an excavation job being performed by said defendant for a forge plant for the Olds Motor Company in Lansing. The truck was not owned by Rector, who had hired it from the owner, one Arnold Maier. The contractor Ragnar-Benson Inc., paid Rector on the basis of $1 per hour as driver and $2 per hour for use of the truck. He had no regular hours of employment. His payroll as a truck driver with the leased truck during the week previous to his death was for 2 1/2 hours on Wednesday, 8 3/4 hours on Thursday, 10 1/4 hours on Friday, no work on Saturday or Sunday, and on Monday, the day of the accident, 1/4 hour.

Some 23 trucks were used on the job, only 2 of them owned by the defendant contractor. Rector's truck was used on the backfill, the foreman directing the truck drivers where to get the backfill, and a checker for the contractor directing them where to unload it. On the morning of the accident Rector was on his first trip and after unloading his backfill on the job was pulling out when the universal joint on his truck broke. The truck was totally disabled at the place where the backfill was being unloaded, and at that place interfered with the work. The contractor's assistant superintendent had it moved by a bulldozer to another place on the premises 250 to 300 feet away, to a place on the premises where it would not be in the way of excavation work or otherwise interfere with the work in any manner for at least three weeks. This occurred about 8:45 in the morning. Rector told the assistant superintendent he was going uptown to make arrangements and get the truck repaired. He was not instructed at any time by anyone connected with the employer to remove his truck from the second position where it was placed by the bulldozer. He returned to the premises about 12:15 p.m. of the same day, and asked another truck driver to give him a tow. Their purpose was to move the truck over to a hard surface from which place an automobile could tow it downtown. In attempting to do so, the other truck driver backed his truck up, bumped the rear end of Rector's truck where Rector was holding a chain to attach for the tow, rector was crushed between the two trucks and killed. The question for decision is whether, under these facts and circumstances, it can be said as a matter of law that the accident resulting in Rector's death arose out of and in the course of his employment.

In Hopkins v. Michigan Sugar Co., 184 Mich. 87, at pages 90, 91, 150 N.W. 325, 326, L.R.A.1916A, 310, quoted with approval in Appleford v. Kimmel, 297 Mich. 8, 12, 296 N.W. 861, the court said: ‘It is well settled that, to justify an award, the accident must have arisen ‘out of’ as well as ‘in the course of’ the employment, and the two are separate questions to be determined by different tests, for cases often arise where both requirements are not satisfied. An employé may suffer an accident while engaged at his work or in the course of his employment which in no sense is attributable to the nature of or risks involved in such employment, and therefore cannot be said to arise out of it. An accident arising out of an employment almost necessarily occurs in the course of it, but the converse does not follow. Bradbury on Workmen's Compensation, vol. 1, p. 398. ‘Out of’ points to the cause or source of the accident, while ‘in the course of’ relates to time, place, and circumstance.'

We have repeatedly held that the question whether an injury can be said to have arisen out of and in the course of the employment depends upon the particular facts and circumstances of each case. No two cases are precisely alike in all respects. In the recent case of Amicucci v. Ford Motor Co., 308 Mich. 151, at page 155, 13 N.W.2d 241, at page 243, the court again repeated what had been said in earlier cases: ‘* * * the question of whether the accident arose ‘our of and in the course of’ the employment depends ultimately upon the facts and circumstances of each case.'

In that case the Department of Labor and Industry found that the accident did not arise out of ‘horseplay’ and this court held that there was competent evidence to support the conclusion. In affirming the award of compensation in the above (Amicucci) case we repeated with approval what had been said in Meehan v. Marion Manor Apts., 305 Mich. 262, 9 N.W.2d 534 (308 Mich. at page 156, 13 N.W.2d at page 243): ‘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.'

Many statements can be selected from numerous decisions which, disconnected from the facts of the case, would support plaintiff's claim for compensation. However, such statements must be considered in connection with the facts in each case. We will briefly review the case relied upon by plaintiff in which compensation was awarded, to ascertain whether they have factual...