Le Vasseur v. Allen Elec. Co.

• Decision Date: 27 November 1953
• Docket Number: No. 27,27
• Citation: 338 Mich. 121,61 N.W.2d 93
• Parties: LE VASSEUR v. ALLEN ELECTRIC CO. et al.
• Court: Michigan Supreme Court

Page 93

61 N.W.2d 93

338 Mich. 121

LE VASSEUR v. ALLEN ELECTRIC CO. et al.

No. 27.

Supreme Court of Michigan.

Nov. 27, 1953.

Roy De Gesero, Saginaw, for plaintiff and appellee.

Harry F. Briggs, Lansing, for defendants and appellants, Stanley Dodge, Lansing, of counsel.

Before the Entire Bench, except BOYLES, J.

BUTZEL, Justice.

George Le Vasseur, plaintiff, was employed by Allen Electric Company of Bay City, Michigan, defendant, at its shop as a journeyman electrician. He also was sent out to do special jobs for customers. When acting in the latter capacity he was paid from the time he left the shop until his return and he received additional reimbursement at the rate of 8 cents per mile when he used his own car.

Because of a shortage of materials, defendant requested plaintiff to remain home until further notice. During the noon hour on September 12, 1950, defendant called plaintiff at his home and requested him to go to the Central High School in Bay City to hook up a cable for the electric ranges in the home economics department. Plaintiff's regular afternoon hours while at the shop were from 12:30 p. m. to 4:30 p. m. He claims that the telephone call reached him at 12:35 p. m., although defendant contends that it was 12:15 p. m., and that from 12:00 noon to 12:30 p. m. was the half hour lunch period. In any event, plaintiff, after placing his tools in his car, set out for the school traveling along the most direct route. While driving along the road a limb fell from a tree on to the car, penetrated the canvas top and struck plaintiff. It knocked him unconscious so that he lost control of the car, which crashed into a tree. Plaintiff suffered severe injuries and incurred large bills for hospital care and doctors' and nurses' services. He was able to return to work in about three months. The Workmen's Compensation Commission affirmed an award of compensation made by the deputy commissioner against defendant and State Accident Fund, co-defendant, who have appealed in the nature of certiorari. They contend that plaintiff's injuries did not arise out of and in the course of his employment as required by statute, C.L.1948, § 412.1, Stat.Ann. § 17.151. They base their claim partly on the fact that plaintiff had not yet arrived at the high school, and that the injuries sustained going to and from work are not compensable. Testimony shows that plaintiff would normally be entitled to pay from the time he left home until his return when sent on a special job. Also, this is not the ordinary case of an employee going to and from his work but one where the employee was engaged in a special mission in the interest of the at the direction of his employer. See Stockley v. School District No. 1, 231 Mich. 523, 204 N.W. 715.

Defendants insist that plaintiff's injuries did not arise out of his employment. They cite Nelson v. Country Club of Detroit, 329 Mich. 479, 45 N.W.2d 362, Klawinski v. Lake Shore & Michigan Southern Railway Co., 185 Mich. 643, 152 N.W. 213, L.R.A.1916A, 342, and Thier v. Widdifield, 210 Mich. 355, 178 N.W. 16, all lightning cases where the injury occurred through an 'Act of God.' In the instant case there was no storm or unusual weather conditions at all. Without objection, plaintiff was permitted to testify that he did not see the limb fall, but that he had been told that it was 'a little decayed,' and that it was six to eight inches thick. We believe we can safely assume that the information was correct, for limbs of trees do not fall without some intervening force unless they have rotted. Such a limb should have been removed for it constituted as much of a menace on the highway as any obstruction the car might have run into. Defendants further rely upon Levchuk v. Krug Cement Products Company, 246 Mich. 589, 225 N.W. 559, wherein the employee was struck by flying glass when a pheasant flew into and shattered the windshield of a truck in which he was riding in the course of his employment. Our decision there that the injury did not arise out of the employment was by an equally divided court, so that case is not binding upon us as a precedent. In the later case of Morse v. Port Huron & Detroit R. Co., 251 Mich. 309, 232 N.W. 369, 371, we said:

'Defendant contends that the accident did not arise out of Morse's employment because the street hazard was not peculiar to his work, but was common to the neighborhood and a risk to which all persons in the street were subject. The nebulosity originally enveloping the rule invoked has been considerably dissipated by later cases. We need not spend the time to trace the change. It is sufficient to say that it is the rule in this State that, if the employment requires an employee to go upon the public street, the ordinary hazards of the street are incurred in the course of the employment'.

In Widman v. Murray Corporation of America, 245 Mich. 332, 222 N.W. 711, 712, an employee was required to travel by train in the course of his employment, and while so traveling was struck in the eye by a cinder. In affirming an award of compensation we quoted with approval from Cook's Case 243 Mass. 572, 137 N.E. 733, 29 A.L.R. 114, as follows:

'When these hazards thus become connected with and incidental to the employment, and are the direct cause of the accident, such accidents arise out of, as well as in the course of, the employment. And the fact that others, engaged in their own affairs are more or less exposed to the same street risks, does not preclude recovery by an employee who is necessrily exposed to them in performing the duties of his employment contract.'

We believe that the rule applicable to this class of cases is well stated in Katz v. A. Kadans and Company, 232 N.Y. 420, 134 N.E. 330, 331, 23 A.L.R. 401, wherein the Court of Appeals said:

'If the work itself involves exposure to perils of the street, strange, unanticipated, and infrequent though they may be, the employee passes along the streets when on his master's occasions under the protection of the statute.'

The court further said that:

'Particularly on the crowded streets of a great city, not only do vehicles collide, pavements become out of repair, and crowds jostle, but mad or biting dogs may run wild, gunmen may discharge their weapons, police officers may shoot at fugitives fleeing from justice, or other things may happen from which accidental injuries result to people on the street * * * and do not commonly happen indoors.'

See also our own decisions in Kunze v. Detroit Shade Tree Company, 192 Mich. 435, 158 N.W. 851, L.R.A.1917A, 252, where the employee was injured while boarding a street car while traveling from job to job in the course of his employment, and Arnested v. McNicholas, 223 Mich. 488, 194 N.W. 514, where the emplolyee was shot by an unknown deer hunter while searching for a route over which to construct a roadway through the woods. In both these cases we held that the employees' injuries arose out of their employment. A number of cases from other jurisdictions holding that street injuries are compensable as arising out of the employment when it is the employment itself that places the employee on the street may be found in 80 A.L.R. 126 and many supplemental decisions listed in the ALR Blue Books.

The award of compensation is affirmed, with costs to plaintiff.

ADAMS, CARR and BUSHNELL, JJ., concurred with BUTZEL, J.

DETHMERS, Chief Justice (dissenting).

I do not concur in affirmance. Mr. Justice Butzel and plaintiff stress the special mission doctrine. What is its singnificance? It is held generally that injuries sustained by employees while en route to or from work do not arise out of and in the course of their employment. Daniel v. Murray Corporation of America, 326 Mich. 1, 6, 39 N.W.2d 229, 230, and cases there cited. An apparent exception is noted in the case of the special mission, a brain child of judicial construction not mentioned in the statute. The theory is that while traveling en route to or from work on a special mission the employee is actually in the performance of duties for his employer and that, therefore an injury then sustained arises 'in the course of' his employment. Touching on whether it also arises 'out of' his employment, this court has held that it does, if caused by one of the ordinary hazards of the street or traffic or of the place where or of the means by which the mission is performed, such hazards being deemed connected with and incident to the employment. Kunze v. Detroit Shade Tree Co., 192 Mich. 435, 158 N.W. 851, L.R.A.1917A, 252; Clifton v. Kroger Grocery & Baking Co., 217 Mich. 462, 187 N.W. 380; Arnested v. McNicholas, 223 Mich. 488, 194 N.W. 514; Stockley v. School District No. 1, 231 Mich. 523, 204 N.W. 715; Favorite v. Kalamazoo State Hospital, 238 Mich. 566, 214 N.W. 229; Widman v. Murray Corporation of America, 245 Mich. 332, 222 N.W. 711; Morse v. Port Huron & Detroit R. Co., 251 Mich. 309, 232 N.W. 369; Konopka v. Jackson County Road Comm., 270 Mich. 174, 258 N.W. 429, 97 A.L.R. 552; Chrysler v. Blue Arrow Transport Lines, 295 Mich. 606, 295 N.W. 331. There is nothing in the workmen's compensation act to indicate a legislative intent, nor anything in the cited or related cases to suggest, however, that an injury sustained while en route to or from work on a special mission must be held to arise 'out of' employment regardless of the source or cause, or that the granting of compensation may be justified on the single ground that it was because of his employment that the employee happened to be at the place when and where the accident happened, without a showing of any causal connection between the injury and the employment in the shape of unusual exposure to the hazard in question. On the contrary, the cited cases go no further than to hold that the effect of the doctrine of special mission is to take an employee injured en route to or from work on a special mission out of the position of the ordinary...