White v. State

• Decision Date: 27 November 1953
• Docket Number: No. 40,40
• Parties: WHITE v. STATE et al.
• Court: Michigan Supreme Court

Page 31

61 N.W.2d 31

338 Mich. 282

WHITE v. STATE et al.

No. 40.

Supreme Court of Michigan.

Nov. 27, 1953.

Warner & Hart, Lansing, for plaintiff and appellee.

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

Before the Entire Bench.

BUSHNELL, Justice.

The late Stuart B. White, of Niles, Michigan, was appointed chairman of the Michigan Public Service Commission on July 2, 1947. White acted in that capacity until July 3, 1949, and thereafter continued as a member of the commission until his untimely death on November 10, 1950. In accordance with a custom of many years' standing he was furnished, as were the other members of the commission, with an automobile owned by the State, and with credit cards to finance its maintenance and operation. Generally, such cars are used for State business, but it is the practice of those to whom they are assigned to also use them in driving from their homes to Lansing and return.

The commission, of which the deceased was a member, exercises regulatory control over all public utilities and other services affected with a public interest within this State, and to that end conducts hearings at the office of the commission in Lansing, although sometimes hearings are held elsewhere. The hours of employment of the office force are from 8 a. m. to 5 p. m., but members of the commission, like those of other departments, boards and commissions, do not and cannot adhere to specific office hours. Commissioner White used the car assigned to him in the performance of his duties and in order to travel weekends to his home in Niles, Michigan. He, like other commissioners, usually took files home in order to study pending matters.

On Friday, November 10, 1950, Commissioners White and Schuyler L. Marshall conducted a hearing concerning the Mulvena Truck Lines, Inc., at the office of the commission in Lansing. The formal session was concluded about 3 o'clock that afternoon and, because Commissioner White had a dinner engagement that night and it had started to snow, he left the office about 3:45 p. m., taking with him some papers relative to the hearing just concluded. He departed from Lansing in the State owned car for his home at Niles, and when he reached a point on M-60, about a half mile west of Burlington, Michigan, he had a fatal accident.

His widow, Marjorie A. White, filed an application for hearing and adjustment of claim as a dependent of the deceased, in which her daughter, Martha, and son, Joseph B., are also described as dependents. The Claim was contested by defendants 'State of Michigan, Public Service Commission, and State Accident Fund.'

The deputy commissioner of the workmen's compensation commission in awarding compensation to the dependents found that----

'deceased carried out the duties as required by his employer both at the city of Niles and at Lansing, and was accustomed to travel between the two points with the cognizance and full approval of the employer.'

Upon review, the compensation commission in its written opinion recited the details of Commissioner White's appointment and activities with considerable emphasis upon the testimony of ex-Governor Sigler. The Governor had testified that, due to reluctance to accept the appointment, Commissioner White was assured by him that he could take commission work home on Friday and would not have to return to Lansing until Monday, in order that he might have more time with his family. In sustaining the award of the deputy the commission said:

'It is undisputed the deceased was furnished transportation from his home at Niles to Lansing and return by his employer at the cost of the employer. He was provided that transportation as a part of his contract of employment. The accident arose out of the transportation and because it was furnished by the employer the deceased was in the course of its employment when the accident happened. Konopka v. Jackson County Road Commission, 270 Mich. 174, .

'There is another basis for concluding that the accident arose out of and in the course of the employment, namely, the deceased had with him a part of the Commission's file in an important pending case to work on in his office in Niles where he was accustomed to work on Commission matters over the weekend. That alone is sufficient to establish a causal relation between the accident and his employment.'

Appellants ask: 'Did plaintiff's decedent's death arise out of and in the course of his employment?' The appellee asks: 'Is the fatal accident compensable under the rule of the Konopka case'? and 'did the contract of employment make Niles an additional post of employment?'

The application of the phrase 'out of and in the course of employment' has produced much litigation. See numerous citations which appear in 58 Am.Jur. § 209 et seq. of the article on Workmen's Compensation; Callaghan's Michigan Digest, Workmen's Compensation, § 68 et seq. See, also, Horovitz, Injury and Death Under Workmen's Compensation Laws (1944), pp. 93 to 173.

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