Thomas v. Certified Refrigeration, Inc.

• Decision Date: 06 September 1974
• Docket Number: No. 10,10
• Citation: 392 Mich. 623,221 N.W.2d 378
• Parties: Forrest THOMAS, Deceased, Suzette Thomas, Administratrix, Plaintiff-Appellant, v. CERTIFIED REFRIGERATION, INC., and Michigan Mutual Liability Company, Defendants-Appellees. 392 Mich. 623, 221 N.W.2d 378
• Court: Michigan Supreme Court

Page 378

221 N.W.2d 378

392 Mich. 623 Forrest THOMAS, Deceased, Suzette Thomas, Administratrix, Plaintiff-Appellant, v. CERTIFIED REFRIGERATION, INC., and Michigan Mutual Liability

Company, Defendants-Appellees.

No. 10.

392 Mich. 623, 221 N.W.2d 378

Supreme Court of Michigan.

Sept. 6, 1974.

Glotta, Adelman & Dinges by Ronald D. Glotta, Detroit, for plaintiff-appellant.

LeVasseur, Werner, Mitseff & Brown by Norman J. LeVasseur, Detroit, for defendants-appellees; E. R. Whinham, Jr., Detroit, of counsel.

Before the Entire Bench except FITZGERALD, J.

WILLIAMS, Justice.

The issue in this case is whether an employee, allowed to garage a company vehicle at his home overnight, seriously injured on his way to work during a detour to deliver his daughter to school, suffered an injury that 'arose out of' and 'in the course of' his employment. In deciding this issue the following three questions must be resolved:

1) Is Conklin v. Industrial Transport, Inc., 312 Mich. 250, 20 N.W.2d 179 (1945), which held that even a slight deviation to carry out a personal mission would preclude compensation, still good law;

2) Is injury compensable which occurs off the employment premises during an employer approved personal activity, where there is some general employer interest;

3) Is injury compensable which occurs off the employment premises during a personal activity unapproved by the employer but where the activity is incidental to the employment relationship.

We answer the first question in the negative and remand the matter to the Workmen's Compensation Appeal Board for further proceedings not inconsistent with our observations on the last questions so that those two matters may be more fairly considered by the Board and parties now that Conklin no longer controls.

I--FACTS

On May 1, 1968 at approximately 7:00 a.m., Forrest Thomas, plaintiff ¹ while driving a Chevrolet van, collided with another vehicle on northbound Southfield Freeway near Joy Road and, as a result, was permanently and totally disabled until his death on August 6, 1970. The truck Thomas was driving was furnished and owned by the defendant-appellee, Certified Refrigeration, Inc., who had employed Thomas as a refrigerator serviceman since 1966.

Testimony was received that the van was designed to provide maximum payload for wheelbase allowed and as a result presented special safety hazards in that the driver had no protection in front-end collisions and there was no partition between the driver and the back of the van. Testimony also was given that Thomas owned a Ford which was structurally safer than the van and which he would have used to drive to work had he not driven the truck home each night.

Thomas would drive the truck to work in Detroit from his home in Dearborn Heights and was required to report by 8:30 a.m. each working day. He would then proceed to make his daily service calls and drive home at the end of the day without first reporting back to his employer's premises. All drivers were permitted and, in fact, took home the trucks they drove although this action was not required by the employer. Testimony was received that by allowing the trucks to remain at the employees' homes overnight, the employer saved costs of enlarging the parking facilities and installing security devices. The trucks carried the company name and slogan, contained equipment necessary to repair refrigerators and were equipped with two-way radios so that the serviceman could be directed to service calls in emergencies without first reporting to work.

On the day of the accident Thomas deviated from his normal route to work and was on his way to pick up his daughter at her home near Southfield and Plymouth Road to take her to school. The route which Thomas planned to take to work upon dropping the daughter at school is unknown. The employer had an expressed policy prohibiting driver-employees from using the trucks for personal use, of which the plaintiff was fully cognizant. However, testimony was received indicating that the employer acquiesced to some forms of personal use. No employee had been fired or otherwise punished for using the trucks for personal business even though several employees had been involved in accidents while on personal missions.

The hearing referee, on March 21, 1969, found the injury did not arise out of and in the course of plaintiff's employment. The Workmen's Compensation Appeal Board affirmed on September 1, 1972 and this Court granted leave to appeal on May 31, 1973. 389 Mich. 795. The defendant moved for reconsideration which was granted. 390 Mich. 771--772 (1973). Application for leave to appeal was then granted on November 1, 1973. 390 Mich. 797--798.

II--CONKLIN

The Workmen's Compensation Appeal Board in its opinion in this case relied upon but forthrightly challenged this Court to review the stringent rule in Conklin v. Industrial Transport, Inc., 312 Mich. 250, 20 N.W.2d 179 (1945) in the light of today's law. The Board said:

'Even such a slight deviation from furthering his employer's business for the sole purpose of carrying a personal mission would be a bar to plaintiff's Workmen's Compensation claim. Conklin v. Industrial Transport, 312 Mich. 250 (20 N.W.2d 179) (1945). A Fortiori, in this particular case plaintiff was not in the course of his employment at the time of the accident, because he had not even entered a business-connected path from which to deviate.

'Whether the Supreme Court in 1972 might interpret the law differently than two decades ago is not up to this Board to speculate.' (164a)

In Conklin Chief Justice Starr with absolute accuracy and ample precedent reflected the law of workmen's compensation of that day. However, the basis of the workmen's compensation law has changed radically since that day, and Conklin is no longer apt nor controlling. Conklin relied on the scope of employment analysis:

'The present case is controlled by our decision in Jeffries v. Jodawelky, 304 Mich. 421, 8 N.W.2d 121, 122, in which we said:

"If it be assumed that the route Jodawelky intended to take was feasible, though not the shortest, such facts would not fasten liability on the employer If the employee had departed from the scope of his employment and was engaged on business personal to himself. . . ." (Emphasis in Conklin) 312 Mich. 250, 256, 20 N.W.2d 179, 181.

Jeffries was an action in negligence invoking Respondeat superior.

Respondeat superior and 'scope of employment,' as this Court stated in Crilly v. Ballou, 353 Mich. 303, 310, 91 N.W.2d 493, 497, (1958) are no longer:

'. . . the principles underlying the passage of compensation legislation. Scope of employment has its uses, it is true, in the application of the doctrine of Respondeat superior. But compensation does not involve Respondeat superior and recovery in compensation cases turns not on the common-law concept of scope of employment but upon the statutory requirement of course of employment. The 2 concepts have a different content. In fact, distinguished students of the subject have stated that, 'perhaps the most important guide' for the interpretation of the expression 'arising out of and in the course of his employment' is to 'realize that it should be sharply differentiated from the technical phrase 'scope of employment' designed to circumscribe the area of vicarious liability to third persons." ²

Our response to the workmen's Compensation Appeal Board therefore is that they properly raised the question of Conklin's continuing validity. Conklin no longer is controlling precedent. Cessante ratione legis cessat et ipsa lex.

III--PERMITTED PERSONAL ACTIVITY

It is a fair conclusion from the facts that Thomas and the other employees of Certified Refrigeration, Inc., were performing a service for that company in taking company vans home, caring for them there and displaying the company name and slogan on them. If the facts in addition establish, and this is not clear, that Thomas acted under general acceptance of the employer that company vehicles would be used from time to time for personal purposes, then it would appear that this Court on the basis of a combination of Burchett v. Delton-Kellogg School, 378 Mich. 231, 144 N.W.2d 337 (1966); Howard v. Detroit, 377 Mich. 102, 139 N.W.2d 677 (1966) and Beaudry v. Watkins, 191 Mich. 445, 158 N.W. 16 (1916) would be justified in finding that Thomas' injury 'arose out of' and 'in the course of' his employment.

In Burchett, this Court found compensable an injury while enroute from school of a school teacher required by her job to bring school work home every night. We held, through Chief Justice Kavanagh, that although what the employee was doing might further her own interest, ³ her injury was compensable so long as she was at the same time performing a service for her employer. Chief Justice Kavanagh capsulized the rule as follows:

'The rule has been reduced to a simple formula: If a special trip would have had to be made if the employee had not combined this service with his going or coming trip, the dual purpose rule applies.' 378 Mich. 231, 236, 144 N.W.2d 337, 339.

See also Clifton v. Kroger Grocery & Baking Co., 217 Mich. 462, 187 N.W. 380 (1922); Anderson v. Kroger Grocery & Baking Co., 326 Mich. 429, 40 N.W.2d 209 (1949).

In Burchett the entire trip was wholly dual-purpose. In Thomas part of the trip was predominantly personal, although the overall trip was dual-purpose.

In Howard, as pointed out in Burchett, '(p)laintiff Howard was concededly on his own time and performing no service for his employer.' 378 Mich. 231, 234, 144 N.W.2d 337, 338. The facts in Howard were that the employee bus driver had a morning run and an afternoon run with from three quarters of an hour to five hours in between on different days. While food was available at the terminal, Howard normally went home and was going home the day he was injured. Justice O'Hara speaking for this Court said '. . . it was a...