Stewart v. Chrysler Corp.

• Citation: 350 Mich. 596,87 N.W.2d 117
• Decision Date: 24 December 1957
• Docket Number: No. 23,23
• Parties: Irene STEWART, Widow (William Stewart, Deceased), Plaintiff and Appellee, v. CHRYSLER CORPORATION, Defendant and Appellant.
• Court: Supreme Court of Michigan

Page 117

87 N.W.2d 117

350 Mich. 596

Irene STEWART, Widow (William Stewart, Deceased), Plaintiff and Appellee, v. CHRYSLER CORPORATION, Defendant and Appellant.

No. 23.

Supreme Court of Michigan.

Dec. 24, 1957.

Lacey, Jones & Doelle, Detroit, for defendant and appellant.

Rothe, Marston, Mazey, Sachs & O'Connell, Detroit, for plaintiff and appellee, Bernard M. Freid, Detroit, of counsel.

Before the Entire Bench.

BLACK, Justice.

Here again the Chief Justice would overrule the appeal board where the latter--having been called upon to apply the course of employment test--has decided a pure question of fact. Issue having thus been joined amongst our membership, the question facing us may in short interrogatory be stated as follows: Was the board justified in finding from the testimony that McCoy, convicted as he has been of manslaughter of Stewart, was the aggressor. I hold for affirmative answer.

Mr. Justice Smith, writing in dissent words that are now authoritiative, approaches the variables of 'course of employment's this was (Salmon v. Bagley Laundry Co., 344 Mich. 471, 487, 74 N.W.2d 1, 8) 'We collect these people by the hundreds, even thousands, and we put them to work sometimes amid noise and vibration, sometimes in smoke and steam. They get tired. They get hungry. They get thirsty. They have to go to the toilet. The day wears on and tempers grow short. Relief is sought in horseplay. Trips to the water cooler and the coffee urn grow in number and duration. This is the course of employment. 'Course of employment' is not a sterile form of words. It is descriptive of life in the industrial age. These human deviations from the course of the automation do not suspend the employer-employee relationship. They are not departures from employment, but the very substance of it. They are the inevitable concomitants of the working relationship and conditions which produce the product. Its cost must reflect the fatigue, the irritations, and sometimes the blood that went into it. It is here that we find the explanation for the horseplay cases, the curiosity cases, and the assault cases.'

Looking at this record of facts, we face appraisal of what in essence is a question of degree ¹ of Stewart's fault. Is an ordinary, and understandably provoked, slap of another's face sufficient to break the connection or nexus between employment and countering blow when the degree-comparison lies between a stinging cheek and a fatally bashed skull? Larson says (1 Larson's Workmen's Compensation Law, § 11.15(c), pp. 126, 127):

'Even the first blow, if it was not a particularly damaging one, or if it was provoked by verbal abuse or by a mistaken idea of attack by a detested co-employee, may be held to fall short of aggression.

'One of the practical difficulties besetting the application of the aggressor defense is the very homely fact that, long after a quarrel is over, it is often almost impossible to determine who really started it. Many a father has come home at six o'clock to find he is expected to sit in belated judgment on this issue between his two children, the testimony consisting of 'He hit me;' 'Yes, but she called me a stinker;' 'But before that he grabbed my comic book;' and so on and on. One cannot read the facts behind the aggressor cases without seeing how closely the average factory scuffle follows this pattern. The difficulty with the defense, as the Massachusetts court concluded, is that it imposes the necessity of selecting one overt act out of a series of hostile verbal, psychological and physical acts as the one which, for compensation purposes, caused the quarrel and elicited the ultimate injury.'

Larson refers here, of course, to Dillon's Case, 324 Mass. 102, 85 N.E.2d 69, 71, from which I quote with intent of adoption as follows:

'The striking of the first blow is not the sole and ultimate test as to whether the injury arose out of the employment. * * * We must constantly remind ourselves that in compensation cases fault is not a determining factor, whether it be that of the employee alone or that of the employee contributing with the fault of others, unless it amounts to the 'serious and wilful misconduct' of the employee which by § 27, as appearing in St.1935, c 331, bars all relief to him. Apart from serious and wilful misconduct, the question is whether the injury occurred in the line of consequences resulting from the circumstances and conditions of the employment, and not who was to blame for it. * * * So even where the employee himself strikes the first blow, that fact does not break the connection between the employment and the injury, if it can be seen that the whole affair had its origin in the nature and conditions of the employment, so that the employment bore to it the relation of cause to effect. * * * In the present case there was no evidence whatever of any friction between Dillon and Kenney except in connection with their work. It could reasonably be found that a smoldering enmity was engendered between these men by the carrying on of the employer's work, the control which Dillon as gang leader had over Kenney, and the manner in which he exercised that control in his employer's interest, and it could even be found that at the moment of the trouble Kenney was intentionally interfering with Dillon's work by standing upon the 'pallette' which it was Dillon's duty to raise. In such a case, when the accumulated strain finally breaks down resistance, it seems a narrow treatment of the problem to determine the granting or denying of compensation by the more or less fortuitous circumstance of who aimed the first blow.'

In this case the facts as found show that Stewart, in circumstances of annoying provocation, did no more than slap McCoy's face with his hand. What was the severity of the slap? Was it a 'particularly damaging one'? Did it amount to 'a vicious and unprovoked assault,' as found in presently considered Horvath? Was it of such force as to require our matter-of-law brand of aggressor on Stewart? Surely, and as the signers of this opinion note from the appeal board's essential findings, these are questions for constituted triers of fact rather than questions of law for detached appellate judges.

The analogy of the criminal process is helpful here. Noting again that McCoy was convicted of manslaughter of Stewart, and assuming that the same record of facts was made before the jury when the latter undertook consideration of McCoy's guilt or innocence, would it have been right for the trial judge to instruct that Stewart was the aggressor? I think not (and suspect he did not do so), since the question of identity of the aggressor in personal assault cases, whether the action be one for damages or one brought by the people, invariably becomes one of fact. ² And, when the question arises in compensation proceedings, it is usually the same. See Stulginski v. Waterbury Rolling Mills Co., 124 Conn. 355, 199 A. 653, 658, where it was said:

'The adoption of a rule, that if an injured employee was the aggressor he could not recover compensation, though the injury arose out of the conditions of the employment, would require a definition of terms which would be extremely difficult. Certainly to hold that no matter what provocation and angry words there might have been between the parties, he who struck the first blow, slight though it might be, would be denied compensation would be neither reasonable nor in accordance with sound principles. That the injured employee was the aggressor would certainly be a factor, in some cases an important factor, to be considered in determining whether the chain of causation between the conditions of the employment and the injury has been broken. But it would have that effect as bearing upon the question whether there had intervened personal motives, designs, or the like, sufficient to constitute an intervening cause. * * *

'* * * The question presented in this type of case, as in others involving the issue whether an injury arose out of the employment, is essentially one of fact, to be determined in view of all the relevant circumstances, and the conclusion of the commissioner must stand unless it is one he could not reasonably or legally reach upon the subordinate facts.'

The appeal board found on authority of Dillon and Stulginski, and rules set forth in Marshall v. Baker-Vawter Co., 206 Mich. 466, 173 N.W. 191; Schultz v. Chevrolet Motor Co., 256 Mich. 393, 239 N.W. 894, and Pekin Cooperage Co. v. Industrial Commission, 285 Ill. 31, 120 N.E. 530, that McCoy was the aggressor and that Stewart's injury and death at McCoy's blow arose out of and in the course of Stewart's employment. Such finding is fully supported by evidence. The board found:

'McCoy deliberately and in total disregard of decedent's protests removed the steps which had been provided by the employer for the use, convenience, benefit and protection of decedent and other employees in the course of their work. The argument immediately preceding and culminating in the fatal injury arose out of and because of such actions on McCoy's part. This argument would not have...