Stanton v. Lloyd Hammond Produce Farms, Docket No. 22408

• Decision Date: 10 February 1976
• Docket Number: Docket No. 22408
• Citation: 240 N.W.2d 773,67 Mich.App. 279
• Parties: Ronald STANTON, Plaintiff-Appellant, v. LLOYD HAMMOND PRODUCE FARMS and Farm Bureau Mutual Ins. Co., Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 773

240 N.W.2d 773

67 Mich.App. 279

Ronald STANTON, Plaintiff-Appellant, v. LLOYD HAMMOND PRODUCE FARMS and Farm Bureau Mutual Ins. Co. Defendants-Appellees.

Docket No. 22408.

Court of Appeals of Michigan.

Feb. 10, 1976.

Released for Publication April 22, 1976.

Farhat, Burns & Story by James E. Burns, Lansing, for plaintiff-appellant.

Munroe & Nobach, Peter B. Munroe, East Lansing, for defendants-appellees.

Before ALLEN, P.J., and BRONSON and MAHER, JJ.

MAHER, Judge.

Plaintiff claimed wage benefits and medical expenses after being injured while employed by defendant Hammond Produce Farms. In a three to two decision, the Workmen's Compensation Appeal Board ordered payment of medical expenses but not wage benefits. Plaintiff appeals by leave.

Plaintiff drove a truck for defendant, delivering produce to cities in Southern Michigan and Indiana. His wages depended upon the amount of produce he delivered. On March 1, 1972, while returning from a delivery in Detroit to defendant's farm in East Lansing, plaintiff's truck hit a patch of ice. It rolled over and left the road, temporarily pinning defendant inside.

A hearing was held in March, 1973. The referee awarded wage benefits from March 2, 1972 to May 4, 1972, and medical expenses. The appeal board, deciding against retroactive application of Gallegos v. Glaser Crandell Co., 388 Mich. 654, 202 N.W.2d 786 (1972), reversed the award of wage benefits. The board agreed with the referee that plaintiff's injuries arose out of and in the course of his employment and affirmed the award of medical expenses.

Defendants challenge that plaintiff's injuries are, in any way, compensable. Plaintiff admitted that when the accident happened, he was on his way to his sister's home to tell his brother-in-law that he would need a ride home from the farm. Plaintiff testified that he had worked too late the night before the accident to return to his sister's, where he was staying, and that her phone had been out of order for some time. To reach his sister's, plaintiff turned off I--96 at M--52 and proceeded northward. He intended to turn from M--52 to M--78, but the accident happened on M--52 before he reached its intersection with M--78. The usual route taken to reach the farm from Detroit was to continue on I--96 past M--52. The route taken by plaintiff would have added less than 10 miles to the total trip, but defendant claims the deviation took plaintiff out of the course of employment.

Defendant correctly points out that, since there is no indication that plaintiff's employer approved, even through acquiescence, of the detour for personal business, the recent case of Thomas v. Certified Refrigeration, Inc., 392 Mich. 623, 221 N.W.2d 378 (1974), does not require a finding that plaintiff's injuries are compensable. Thomas consciously avoided deciding 'the further issue whether injury is compensable which occurs off the employer's premises during a personal activity unapproved by the employer but where the activity is reasonably incidental to the employment relationship'. 392 Mich. at 636, 221 N.W.2d at 385.

Nevertheless, Thomas did overrule Conklin v. Industrial Transport, Inc., 312 Mich. 250, 20 N.W.2d 179 (1945). Conklin offered the strongest support in Michigan jurisprudence for finding plaintiff's injuries to be noncompensable. Thomas also suggested that the rule of Crilly v. Ballou, 353 Mich. 303, 91 N.W.2d 493 (1958), be extended to apply to situations such as the one presented by the instant case. Crilly dealt with compensation for injury resulting from horseplay at the job site. Justice Smith wrote in Crilly:

'Herein lies our answer. For the purposes of the compensation act the concept of course of employment is more comprehensive than the assigned work at the lathe. It includes an employee's ministrations to his own human needs: he must eat; concessions to his own human frailties: he must rest, must now and then have a break, and he sometimes, even on the job, plays practical jokes on his fellows. Course of employment is not scope of employment. The former, as the cases so clearly reveal, is a way of life in a working environment. If the injury results from the work itself, or from the stresses, the tensions, the associations, of the working environments, human as well as material, it is compensable. Why? Because those are the ingredients of the product itself. It carries to the market with it, on its price tag stained and scarred, its human as well as its material costs. So says the statute. It does not become us to ignore its plain commands.' 353 Mich. at 326, 91 N.W.2d at 505.

Plaintiff's injuries happened during what the appeal board appropriately called a 'slight deviation'. The long hours he worked the night before were given by plaintiff as the reason he chose an alternate route that would take him past his sister's home. If the deviation was not approved, it could at least be expected that plaintiff, in the many miles of driving he did for defendant, would not always take the shortest route. Expectable deviations from the routine of work do not render injuries noncompensable, Crilly, supra, and we see no reason why, when the employment involves driving the employer's vehicle, deviations which cannot be called unusual should deprive the employee-driver of compensation. Thomas points out that in Crilly, Justice Smith offered the following quote from Secor v. Penn Service Garage, 19 N.J. 315, 117 A.2d 12 (1955):

"An employee is not an automaton, and, even when he is highly efficient, he will to some extent deviate from the uninterrupted performance of his work. Such deviation, if it be...