Sichterman v. Kent Storage Co.

• Decision Date: 08 February 1922
• Docket Number: No. 40.,40.
• Citation: 217 Mich. 364,186 N.W. 498
• Parties: SICHTERMAN v. KENT STORAGE CO. et al.
• Court: Michigan Supreme Court

217 Mich. 364

186 N.W. 498

SICHTERMAN

v.KENT STORAGE CO. et al.

No. 40.

Supreme Court of Michigan.

Feb. 8, 1922.

Certiorari to Industrial Accident Board.

Proceeding under the Workmen's Compensation Act (Pub. Acts, Extra Sess. 1912, No. 10) by Gertrude Sichterman for compensation for the death of her husband, Harry Sichterman, opposed by the Kent Storage Company, employer, and the Michigan Employers' Casualty Company, insurer. Compensation was awarded by the Industrial Accident Board, and defendants bring certiorari. Award vacated.

Harry Sichterman was a traveling salesman in the employ of defendant Kent Storage Company. His territory which he covered once a week, surrounded Grand Rapids, where he lived and where defendant's place of business was located. He made his territory by automobile, leaving Grand Rapids in the morning and returning at night. Either at night or the following morning he turned in his orders to the company. On November 10, 1920, he made his usual trip for that day winding up at Freeport. The usually traveled road from that town to Grand Rapids is known as the ‘Cascade Road’ and was the one taken by Mr. Sichterman. About two miles from Grand Rapids, and after it had grown dark, he came across a peddler, with his wagon at the side of the road. The peddler's wagon had been struck by an automobile about an hour before. Mr. Sichterman drove his car about 25 feet beyond where the peddler was, getting it to the side of the road and stopped, got out of the machine, and walked back in the road to where the peddler was, and had just asked him if there was anything he could do for him, when he was struck by an automobile and so seriously injured that he shortly after died, leaving a widow, the plaintiff, and a son Robert, only four years old. The defense to the claim for compensation is that the accident did not arise out of and was not received in the course of decedent's employment.

Argued before FELLOWS, C. J., and WIEST, STONE, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.Brown & Kelley, of Lansing, for appellants.

Martin H. Carmody, of Grand Rapids, for appellee.

FELLOWS, C. J. (after stating the facts as above).

This state, like many of our sister states, has followed the English act in providing that compensation shall be paid in industrial accidents where the accident arises out of and in the course of the employment. The English courts and the courts of this country with uniformity have agreed that both requirements must be met to justify an award. Both requirements are indicative of the underlying thought that compensation is to be awarded when and where the accidnet occurs in the service of the master and by reason thereof.

In an exhaustive note found in L. R. A. 1916A, 23, following our case of Payner v. Sligh Furniture Co., 180 Mich. 168, 146 N. W. 665, Ann. Cas. 1916A, 386, the subject of Workmen's Compensation Acts is fully treated. At page 41 of L. R. A. 1916A, the editorial writer lays down the general principle:

‘It may be stated generally that the phrase ‘out of and in the course of the employment’ embraces only those accidents which happen to a servant while he is engaged in the discharge of some function or duty which he is authorized to undertake, and which is calculated to further, directly, or indirectly, the master's business.'

The courts recognize the general principles which control, but encounter many difficulties in their application in determining whether the conditions justifying compensation have been met. In considering the case before us we shall first consider the authorities from other jurisdictions, reserving the consideration of our own cases until the last.

The case of Robinson v. State, 93 Conn. 49, 104 Atl. 491, supports plaintiff's contention. The court, however, cites no authorities to sustain its conclusion, and indulges in no reasoning in support of its holding. The English case of Corlett v. Lancashire & Yorkshire Ry. Co., 120 L. T. 236, and the opinion of the Court of Appeals of Indiana, In re Raynes, 66 Ind. App. 321, 118 N. E. 387, also have that tendency, although the English case is not fully in accord with Warren v. Hedley's Collieries Co., W. C. & Ins. Cas. (1913) 172, and in the Indiana case the employé had gotten out of the taxicab in which he was riding to allow the driver to get some gasoline, an incident of the trip.

In London & Edinburgh Shipping Co. v. Brown, 42 So. L. R. 357, Dragovich v. Iroquois Iron Co., 269 Ill. 478, 109 N. E. 999, and General Accident, etc., Co. v. Evans (Tex. Civ. App.) 201 S. W. 705, liability was sustained where the accident occurred in attempting to rescue a fellow workman from a perilous position, the Illinois court saying:

‘Under these authorities it is clear that it is the duty of an employer to save the lives of his employees, if possible, when they are in danger while in his employment, and therefore it is the duty of a workman in his employ, when occasion presents itself, to do what he can to save the lives of his fellow employees when all are at the time working in the line of their employment. Any other rule of law would be not only inhuman but unreasonable and uneconomical, and would, in the end, result in financial loss to employers on account of injuries to their employees. From every point of view it was the duty of the deceased, as a fellow employee, in the line of his duty to his employer, to attempt to save the life of his fellow employee under the circumstances here shown.’

The Texas court, treating the question as a new one to that jurisdiction, said:

‘The question has not been passed upon by any appellate court of this state, so far as we are aware, and in cases in which the question arose in other states the decisions of the courts are at some variance. In some of them it was held that a workman, who goes to the rescue of his master or of another workman, and is therby injured, is not entitled to compensation. But courts of recognized ability have, on the contrary, held that it is the duty of a workman, when the necessity arises, to do what he can to save the life of his fellow employees, when they are at the time working in the line or course of their employment.’

The Court of Appeals of New York went a step further, and in Waters v. Taylor Co., 218 N. Y. 248, 112 N. E. 727, L. R. A. 1917A, 347, held that there was liability under the New York act where an employé went to the rescue of an employé of another contractor engaged in a common enterprise, and held that liability was not defeated though Waters was ‘technically’ working for another employer. But in concluding the opinion, it was said:

‘Of course what we thus say is to be read in the light of the facts presented on this appeal. There is no trouble in outlining a case where an employee, even with the laudable purpose of helping another, might go so far from his employment and become so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment. It is sufficient to say that we do not regard the case now presented to us as being such an one as we have suggested.’

That the New York court had gone further in the Waters Case than other courts had gone was recognized by that court in Matter of Di Salvio v. Menihan Co., 225 N. Y. 123, 121 N. E. 766, where, after reviewing cases from other jurisdictions, it said, referring to the Waters Case:

‘And this court perhaps went farther than any of these cases in extending the benefits of a compensation act.’

In the Di Salvio Case the workman wished to say good-by to a fellow workman before he went to the front. In doing so he crossed the room and there received the injuries for which compensation was asked. Both New York cases were written by Justice Hiscock. In the Di Salvio Case he said, speaking for the court after considering the Waters Case and cases from other jurisdictions:

‘In each of these cases an award was sustained because the court was able fairly to say that between the work for which the employee was engaged and the disputed act which led to the accident there was either naturally or as the result of some act of the employer or of custom a real relationship which brought the accident within the range of employment, and, therefore, it could be said to have arisen out of and in the course of the employment.

‘But in the present case we search in vain for any such feature or relationship. There was no connection between the employment for which claimant was engaged, of marking soles, and his trip across the shop to say good-by to a fellow employee. This act did not enable him either directly or indirectly, in any tangible sense, the better to perform his work, discharge his duties or carry forward the interests of his employer. It was not a natural incident to the work for which he was hired. It did not grow out of any emergency where he was justified in taking an unusual step to protect his employer's interests. It was simply and solely the expression of a private desire and the consummation of a personal purpose. However natural and even commendable his act may have been it was neither beneficial to his employer nor to himself in the way of completing and performing his work.’

An English case frequently cited both by the courts of England and of this country is Reed v. Great Western Ry. Co., 99 L. T. 781 (also found reported in 78 L. J. 31), decided by the House of Lords in 1908. The workman, an engineer, left his engine when it was standing at rest to get a book from a fellow employé, and was injured so seriously that he died. It was held that the accident did not arise out of and in the course of the employment.

In Smith v. Lancashire & Yorkshire Ry., 79 L. T. 633, a ticket collector collected the tickets from a certain train, but had not completed his day's work. He got on the footboard to speak to a girl he knew, and was injured. It was held...