Roblyer v. City of Kalamazoo

• Decision Date: 03 April 1950
• Docket Number: No. 45,J,45
• Citation: 41 N.W.2d 903,327 Mich. 392
• Parties: ROBLYER v. CITY OF KALAMAZOO. anuary Term.
• Court: Michigan Supreme Court

Page 903

41 N.W.2d 903

327 Mich. 392

ROBLYER v. CITY OF KALAMAZOO.

No. 45, January Term.

Supreme Court of Michigan.

April 3, 1950.

Richard H. Paulson, City Attorney, Robert A. Palmer, Deputy City Attorney, Kalamazoo, for defendant, employer and appellant.

Gemrich, Moser & Christy, Kalamazoo, for plaintiff, employee and appellee.

Before the Entire Bench.

DETHMERS, Justice.

Plaintiff was employed by defendant city as a policeman. He was not a member of the motorcycle squad. Additional positions on that squad were soon to become available. In the past recruits for it usually had come from other branches of the police department, but training in the operation and use of a motorcycle was a prerequisite to appointment. Upon inquiry by one of his superiors, plaintiff indicated that he was interested in obtaining a position on the squad and was told that, upon qualifying himself as a motorcycle operator, he would be given an appointment. Another officer was assigned to teach him to operate a motorcycle. After some instruction plaintiff and his instructor went to the superior officer and told him that plaintiff was able to ride and that all he needed was further practice. His superior replied, 'Fine' Go aheah and get your practice and as soon as an opening comes you will go on the bikes.' He was not given time to practice during his working hours. On the day in question, when his eight hour shift had ended plaintiff went off duty. Thereafter he went to the police garage and, without the knowledge, consent or instruction of his superiors, took a motorcycle for the purpose of practicing on it, drove outside the city and became involved in an accident causing him injury.

From an order of the workmen's compensation commission awarding plaintiff compensation and medical and hospital expenses defendant appeals, contending that plaintiff's injury did not arise out of and in the course of his employment. Cited contra and relied upon by plaintiff are: Appleford v. Kimmel, 297 Mich. 8, 196 N.W. 861; Daniel v. Murray Corporation of America, 326 Mich. 1, 39 N.W.2d 229; Haller v. City of Lansing, 195 Mich. 753, 162 N.W. 335, L.R.A. 1917E, 324; Geibig v. Ann Arbor Asphalt Construction Co., 238 Mich. 560, 214 N.W. 90; Mann v. Board of Education of City of Detroit, 266 Mich. 271, 253 N.W. 294. These and other cases discussed by the parties set forth the controlling tests. None of them is authority for plaintiff's contention that his injury arose out of and in the course of his employment in the instant case.

At the time of the accident plaintiff was employed as a policeman to cruise with an automobile. He was not employed to operate nor learn to operate a motorcycle. When the accident occurred plaintiff was performing an act which had no connection with the job which he was...