Saily v. 500 Bushel Club, 93

• Decision Date: 07 January 1952
• Docket Number: No. 93,93
• Citation: 332 Mich. 286,50 N.W.2d 781
• Parties: SAILY v. 500 BUSHEL CLUB et al.
• Court: Michigan Supreme Court

Page 781

50 N.W.2d 781

332 Mich. 286

SAILY v. 500 BUSHEL CLUB et al.

No. 93.

Supreme Court of Michigan.

Jan. 7, 1952.

Charles L. Santini, Ironwood, for plaintiff and appellee, B. E. Larson, Ironwood, of counsel.

Charles M. Humphrey, Jr., Ironwood, for defendants and appellants.

Before the Entire Bench.

DETHMERS, Justice.

Defendants appeal from the workmen's compensation commission's award of compensation. Plaintiff was employed by defendant club to set tables and wash dishes. She worked each day before and after the breakfast, lunch and dinner periods. Between those periods she had time off regularly when she was free to do as she pleased. On the day in question she finished her work in connection with the lunch period at about 1:30 p. m., when she went off duty, her time became her own, and she was not to be on duty again until 5:15 p. m. During that free period she was not required to do anything and had nothing to do for her employer, and she was at liberty to leave the club premises, or to remain, as she chose. Accordingly, she and two fellow employees left the lodge of the club where they worked and went for a walk, eventually coming to a dump located about one half mile from the lodge. At or near that location a deer attacked her, causing her injuries and the resultant disability for which compensation was awarded. The club is located in the midst of woods about ten miles from the nearest town, where plaintiff resided.

Defendants contend that plaintiff's injuries did not arise out of and in the course of her employment. It is plaintiff's theory, however, apparently adopted by the commission, that the club was so far from town and her free time in the afternoon of such short duration that, as a practical matter, she had to remain of the club premises and, therefore, was, in reality, not off duty when injured and that, for that reason, her injury arose in the course of her employment; and, further, that because the deer was known by her employer to be constantly on the premises, attracted by guests who fed and made a pet of it, therefore there was a causal connection between her injury by the deer and her employment in that 'her injury * * * followed as a natural incident of her work because of the exposure occasioned by the nature of her employment.'

The commission was in error. It found as a fact that at the time plaintiff was attacked she 'had some free time', had 'freedom of activity', 'was off duty', and that she 'was at liberty to leave the premises or to remain there as best suited her fancy'. Such finding of facts was supported by the undisputed testimony in the record. There was no evidence to support a contrary finding of facts. In the face of that finding of facts the commission came to the legal conclusion that plaintiff's 'freedom of activity' at the time 'was more of a theoretical than a practical right, in that the leaving of the premises and making the round trip of some 20 miles to her home just for the fun of doing it would be pointless', and that, therefore, she was in the course of her employment when injured. Such fantastic finding that while plaintiff was, as a matter of fact, off duty, nonetheless, as a matter of law, she was in the course of her employment,...