291 N.W. 637 | Mich. | 1940
The question presented by this appeal is whether there is any testimony to sustain the finding *212 of the department that plaintiff's injury arose out of and in the course of his employment. He was one of several employees engaged by the city of Lansing in its street work. Their regular midday hour off from work was from 11:30 a. m. to 12:30 p. m. On the day of the accident plaintiff and two of the other employees seemingly left the place where they were working very shortly before 11:30 a. m., and started in the automobile of their foreman, Henry Leeper, to go some distance to the city shed where plaintiff had left his noonday lunch. On the way Leeper's automobile driven by him came into collision with another automobile, and plaintiff's injury for which he seeks compensation resulted. According to plaintiff's testimony this collision occurred "about 11:25." But regardless of the exact minute at which the accident occurred the undisputed testimony is that it occurred after plaintiff and his two fellow employees had finished their forenoon's work and had gone a substantial distance from the place of employment. One of these fellow employees, as a witness for plaintiff, testified:
"Q. Were you on the city's time when the accident happened? Are you paid during the noon hour?
"A. No.
"Q. Were you on your own time?
"A. On our own time."
Plaintiff had previously testified:
"Q. Did you go back at noon to the shed?
"A. Yes.
"Q. You go back to the shed to eat?
"A. Yes. * * *
"Q. Your whole purpose, Mr. Furino, in going back to the city sheds was to get your dinner pail and eat your lunch?
"A. Yes." *213
In riding on his way to his noonday lunch with Mr. Leeper, plaintiff was in no different status than as though he had walked, "thumbed" a ride with a stranger, or taken a city bus. The accident happened after plaintiff and other employees had quit their work for the noon hour; and it happened at a point remote from plaintiff's place of employment. In the latter aspect the instant case must be distinguished fromHaller v. City of Lansing,
And it conclusively appears from this record that incident to plaintiff's employment it was neither expressly nor impliedly understood he would be provided by defendant with transportation to or from the place where plaintiff ate his noonday lunch. In conveying plaintiff to the place where he was to eat, Mr. Leeper was merely doing a friendly act.Spooner v. Detroit Saturday Night Co.,
In numerous cases appealed to this Court on records of somewhat similar character we have held the injured employee was not entitled to compensation. See Hills v. Blair,
The award entered by the department will be vacated. Costs to appellant.
BUSHNELL, C.J., and SHARPE, POTTER, CHANDLER, McALLISTER, WIEST, and BUTZEL JJ., concurred.