Thiede v. G. D. Searle & Co.

• Decision Date: 08 December 1936
• Docket Number: No. 86.,86.
• Citation: 278 Mich. 108,270 N.W. 234
• Court: Michigan Supreme Court
• Parties: THIEDE v. G. D. SEARLE & CO. et al.

278 Mich. 108

270 N.W. 234

THIEDE

v.G. D. SEARLE & CO. et al.

No. 86.

Supreme Court of Michigan.

Dec. 8, 1936.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Mrs. Nellie Thiede for the death of her husband, opposed by G. D. Searle & Company, employer, and the Travelers Insurance Company, insurer. From an order of the Department of Labor and Industry granting plaintiff compensation, the defendants appeal by certiorari.

Affirmed.

Argued before the Entire Bench except POTTER, J.

Kelley, Sessions, Warner & Eger, of Lansing, for appellants.

Alexander, McCaslin & Cholette, of Grand Rapids, for appellee.

TOY, Justice.

Defendants appeal by certiorari from an award made in favor of plaintiff by the Department of Labor and Industry, granting compensation for the death of her husband, Dr. Thiede, which resulted from injuries he received when the Hotel Kerns in Lansing was destroyed by fire in the early morning of December 11, 1934.

Dr. Thiede, at the time of the fire, was employed by defendant G. D. Searle & Co., an Illinois corporation, as its traveling salesman in a designated territory exclusively in Michigan, which included the entire state with the exception of Detroit. He and one other salesman were the only two employees of such company in Michigan. His employment commenced May 15, 1933, and continued until his injuries. His territory in Michigan was divided into seven routes which he was required to canvass. One route included Lansing and nearby territory. On the occasion of the hotel fire the deceased was in Lansing, covering that particular route, which was at the request and direction of his employer and in its interest. The testimony indicated that deceased stopped at the Kerns Hotel in furtherance of his employment and that the necessity thereof was recognized by his employer. The causes of death were shock, partial suffocation from smoke, broken bones, and internal injuries sustained when deceased, in his attempt to escape the fire, leaped from the third story of the hotel.

Appellants contend, on appeal, that there is no liability because: (1) The contract of hire had its inception in Illinois, and that the compensation, if any, must be sought under the Illinois compensation law (Smith-Hurd Ill.Stats. c. 48, § 138 et seq.); that because of this situation the Michigan Department of Labor and Industry had no jurisdiction. (2) That the accidental injury resulting in decedent's death did not arise out of nor in the course of his employment.

We find no merit in the first contention. The defendant, at the hearing below, admitted that it had elected to become subject to the Michigan Compensation Act. It admitted that it had only two employees in Michigan, one of whom was decedent. His injury occurred while employed in the state, after the employer's election to become subject to the act. Section 5 of the act, section 8411 of 2 Comp.Laws 1929, designates whom shall be constituted employers ‘ subject to the provisions of this act,’ as follows: ‘ Every * * * corporation * * * who has any person in service under any contract of hire, * * * and who, at or prior to the time of the accident to the employe for which compensation * * * may be claimed, shall in the manner provided in the next section, have elected to become subject to the provisions of this act.’ (Italics ours)

The next section of the act, section 8412, provides: ‘Sec. 6. Such election on the part of the employers mentioned in subdivision two (2) of the preceding section, shall be made by filing with the industrial accident board, * * * a written statement to the effect that such employer accepts the provisions of this act * * * to cover and protect all employes employed in any and all of his businesses, including all businesses in which he may engage and all employes he may employ while he remains under this act.’ (Italics ours)

The act (section 8413, as amended by Pub.Acts 1931, No. 58) defines an ‘employee’ as: ‘Every person in the service of another, under any contract of hire, express or implied.’

Furthermore, it conclusively appears that the contract of employment, even if executed in the state of Illinois, was entered into with the definite understanding between the parties that the employment was to be performed exclusively within the state of Michigan. The deceased employee was a resident of this state; so also is his dependent...