Simerka v. Pridemore, 2

• Decision Date: 04 March 1968
• Docket Number: No. 2,2
• Citation: 380 Mich. 250,156 N.W.2d 509
• Parties: Dorothy A. SIMERKA, Plaintiff and Appellant, v. Walter G. PRIDEMORE, Defendant and Appellee. Charles F. SIMERKA, Plaintiff and Appellant, v. Walter G. PRIDEMORE, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 509

156 N.W.2d 509

380 Mich. 250

Dorothy A. SIMERKA, Plaintiff and Appellant, v. Walter G. PRIDEMORE, Defendant and Appellee.

Charles F. SIMERKA, Plaintiff and Appellant, v. Walter G. PRIDEMORE, Defendant and Appellee.

No. 2.

Supreme Court of Michigan.

March 4, 1968.

Norman P. Ochs, Detroit, for plaintiffs and appellants; Norman L. Zemke, Detroit, of counsel.

Eggenberger & Eggenberger, Detroit, for defendant and appellee.

Before the Entire Bench.

BLACK, Justice.

Presented is another instance of that which has prolonged appellate contention over what in the third circuit seems to have become a matter of course application of GCR 1963, 116, 117, either or both, to actions in tort for personal injury or death damages. That the practice has been encouraged by schismatic opinions recorded here since Rules 116 and 117 became ffective can hardly be doubted. See our latest division, Weeren v. Evening News Ass'n., 379 Mich. 475, 152 N.W.2d 676. The bald fact is that, thus far, the Justices simply cannot reason together on summary judgment ground; hence this separate opinion for reversal of these latest orders granting, and then affirming, quick judgment for a defendant who has pled an affirmative defense he says has been made out, prior to trial, as a matter of law. ¹

These are consolidated suits for negligence arising out of a collision of two automobiles. Excepting that the collision occurred on an employer-owned parking lot that was 'open to the public,' there would be no question about the plaintiffs' right to proceed to trial of their charge that defendant was guilty of actionable negligence.

Plaintiff Charles F. Simerka and defendant were drivers of the two cars. Both were employees of Ford Motor Company. Whether Both at the critical time and place were engaged in the course of their employment, ² and whether such automotive collision arose out of such dual employment, are the critical questions which the circuit court decided as a summary matter of law. On appeal Judges Lesinski and T. G. Kavanagh, of the Court of Appeals, granted defendant's motion to affirm. Gillis, J., dissented on ground that 'there is a question of fact warranting a trial on the merits.' The cases are here on grant of leave.

The facts upon which the trial court assumed to enter the aforesaid judgments appear in its opinion as follows:

'From reading the complaints, the answers and special defenses, the motions for summary judgment and answers to the summary judgment, and the pretrial statement which was made by the Hon. Edward S. Piggins on August 20, 1965, the following facts can be determined. These are two personal injury cases which have been consolidated and are to be tried together. The plaintiff Charles F. Simerka was an employee of the Ford Motor Company and had finished his day's employment on February 4, 1961 at 12:15 A.M.; that he had gone to his automobile which was parked in a lot open to the public and owned and maintained by the Ford Motor Company; that he was proceeding to drive his automobile out of this parking lot when this accident occurred.

'The facts show that the defendant was also an employee of the Ford Motor Company who had finished his work at the same time and was operating his car on this same parking lot at the time of this collision.

'The facts further show that both plaintiff Charles F. Simerka and the defendant were employees of the Ford Motor Company and therefore co-employees of the Ford Motor Company and were in the process of going home at the time the accident occurred on the parking lot owned by the Ford Motor Company.'

These judgments, based thus, should at the outset be subjected to a few pointed questions.

The first is terse inquiry whether, on supposition that Mr. Simerka and Mr. Pridemore had Both received disabling injuries as a result of the collision and that Both had applied for benefits under the workmen's compensation law, we upon the same record would be obliged to hold, as a matter of law (contrary say to findings and decision of the appeal board), (a) that Both employees were engaged in the course of their employment and (b) that this automotive collision arose 'out of' such employment. For answer it need only be said that this Court has not yet gone that far. Ladner v. Vander Band, 376 Mich. 321, 136 N.W.2d 916, does not. See the discussion of this stipulated fact case, and the comparison of these truncated depositions with the complete record of Hills v. Blair, 182 Mich. 20, 148 N.W. 243, both past.

The next inquiry is more searching, assuming the Court is willing to consider today's question by testing employer Ford's liability in the specific setting of these motions for summary judgment. This Fordowned area being open to and in use by the public (hence upon the present record being legally analogous to the privately-owned 'public area' considered in Amalgamated Clothing Workers v. Wonderland Shopping Center, 370 Mich. 547, 122 N.W.2d 785 and the sidewalk and pavement of the 'company town' of Chickasaw; Marsh v. State of Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265), what about Ford's liability to third persons, not employees of Ford but lawfully in the area, should we hold that Messrs. Simerka and Pridemore were, as a matter of law, still 'in the course' of their employment when the automobiles. driven by them collided and, necessarily further, that the collision arose 'out of' such employment? To illustrate:

Suppose that Mrs. X, not an employee but walking toward lawful business with Ford, had been struck and injured as a result of this automotive collision and had sued Ford for negligence of both drivers. Assuming Mrs. X has made out a submissible case of negligence as charged, would not Ford be entitled at very least to a jury determination of its liability under Respondeat superior? Or would the trial judge be obliged upon request to instruct the jury that both Simerka and Pridemore at the time of collision were engaged in the course of their employment, that the collision was causally connected with that employment, and that Ford should be held responsible for their negligence as charged, should such negligence be found?

The trial court's decision here, if affirmed other than by equal division, will be pretty matter-of-law rough on the employers of those hundreds of employees who, at end of each shift, hurry if not race their cars in the employer's huge parking lot toward those jammed up exits. There indeed an employee's own risk of sustaining or causing injury 'out of automobile travel' has superseded, to some factually variable extent, the employer-assumed risks of his employment. As said by the writer in Howard v. City of Detroit, 377 Mich. 102, 113, 114, 139 N.W.2d 677, 682 (footnote):

'If it was right to say As a matter of law (Baas at 655, 124 N.W.2d at 753) that Mrs. Baas' 'accidental injury arose out of automobile travel, not out of the work she was required to do at home.', then the fact-finding appeal board was possessed of right to find that Mr. Howard's injury, arising as it did in the course of automobile travel, was causally disconnected with his employment.' ³

To prove the point of vicarious liability compare Gorman v. Jaffa, 248 Mich. 557, 227 N.W. 775. There the issue of the defendant employer's responsibility for the negligence of his employee in operating an automobile (belonging to a third person), occurring when as claimed by that defendant the employee 'was not acting within the scope of his employment,' was held properly submitted to the jury. The employee, a bookkeeper and clerk, was definitely 'on the premises' (the building where his work was regularly performed); not on a nearby 'open to the public' parking lot. He was starting to drive out of the building for lunch when his negligent act caused the plaintiff's injury. Nonetheless the question of causal 'course of employment,' and hence the employer's liability, was held to be a question of fact.

Note that the unanimous Court (Jaffa at 563, 227 N.W. 775) proceeded to apply the rules of Brink v. J. W. Wells Lumber Co., 229 Mich. 35, 201 N.W. 222 to determine whether the defendant employer could by jury verdict be held under the doctrine of Respondeat superior to the plaintiff. Then compare Brink's rules with the amendment of 1954. The amendment added, as a paragraph to mature section 1 of part 2 of the workmen's compensation law (C.L.S.1961, § 412.1), ⁴ the following:

'Every employee going to or from his work while on the premises where his work is to be performed, and within a reasonable time before and after his working hours, shall be presumed to be in the course of his employment.'

The amendment of 1954 came first to judicial consideration when Dyer v. Sears, Roebuck & Co., 350 Mich. 92, 85 N.W.2d 152, and Freiborg v. Chrysler Corp., 350 Mich. 104, 85 N.W.2d 145, were submitted and simultaneously decided in 1957.

Dyer presented a clear 'on the premises' situation. The claimant employee started downstairs, in the employer's building where she did typing and filing work, to pay a bill (her mother's) in a nearby office building. The time was the noon hour and she was off duty. She fell on the stairway and sustained what the majority held was a compensable injury.

On the other hand Freiborg's situation was that of an employee on his way to work. He parked his car in the employer's parking lot 'about 200 yards from the entrance by which plaintiff gained admission to the plant.' and started to walk toward the place of his work. While walking in the lot he was struck by an automobile and held, by the appeal board, to have been compensably injured.

The factual distinction between the two cases did not affect the result of either, the Court having affirmed awards of compensation in favor of both claimants. The distinction did, nevertheless, give rise to two interpretative points made by the minority which the majority did not dispute.

One was that the amendment o...