*1 Lb 1953] Allen Electric Vasseur Le v. ALLEN VASSEUR ELECTRIC COMPANY. Compensation —Electrician—Street 1. Workmen’s Hazards. employer who received call from Electrician while at home to up proceed to a school to hook for range cable an electric department, normally the home economics who would be en- pay titled to from time he left home until his return thereto injured by and who was en route limb which fell from a tree compensable injury, employment required suffered a since the go upon public upon special street mission employer (CL 1948, seq.). for the 412.1 et § Palling 2. Evidence —-Judicial Notice — Limbs. judicial Supreme The Court takes notice of the fact that limbs intervening of trees do not fall without some they force unless have rotted. Precedents—Equally 3. Divided Court. Courts — by equally A case decided divided court does not constitute a binding precedent. Compensation
4. Workmen’s —Street Hazards. public exposed fact perils is also public preclude recovery streets does not compensation of workmen’s injury by for to an who suffers reason of street employer. hazard while on a mission of the Sharpe Dethmers, J., Reid, JJ., dissenting. C.
[3] [1,
[1,
Right
Injury
Injury
Death or
4]
ployer’s place
cost of
as affected
14 Am
are
does
Boy plaintiff. Gesero, Be for Briggs Bodge, Harry (Stanley counsel), F. for defendants. plaintiff, George Vasseur, Le em- J. Butzel, City, Company Bay
ployed by Mich- Allen Electric journeyman igan, shop elec- at its as defendant, jobs out do for trician. He also was sent to capacity acting he in the latter customers. When shop paid from the time he left the until his re- was turn and the rate of 8 cents he received additional reimbursement at
per mile
when he used his own car.
shortage
re-
materials, defendant
Because of
quested plaintiff
further no-
remain home until
to
September
During
the noon hour
tice.
defendant called
requested
plaintiff
home and
at Ms
Bay City
High
go
School
him
the Central
ranges
up
in the home
for the electric
hook
a cable
regular
department.
after-
Plaintiff’s
economics
p.m.
shop
from 12:30
noon hours while at
were
telephone
p.m.
call
He
that
to 4:30
claims
although
p.m.,
defendant con-
reached him at 12:35
p.m.,
that from 12:00
that it was 12:15
and
tends
period.
p.m.
to 12:30
the half-hour lunch
noon
plaintiff,
placing
after
his tools Ms
event,
n car,
traveling along
set
school
most
driving along the road a limbfell
direct route. While
Vasseur,
Lé
Allen Electric
penetrated
top
car,
a tree onto the
the canvas
plaintiff.
and struck
It
him
knocked
unconscious so
that he lost control of the
which
car,
crashed into a
injuries
tree. Plaintiff suffered severe
and incurred
large
hospital
hills for
care
doctors’ and
nurses’
services. He was able to return to
work
about
compensation
3 months. The workmen’s
commission
compensation
affirmed
deputy
award of
made
against
commissioner
defendant and State
Accident
appealed
Fund,
have
codefendant, who
They
plain
the nature of certiorari.
contend that
injuries
tiff’s
did not arise out of and in the course
required by
of his
statute, CL 1948,
(Stat
§412.1
§17.151). They
Ann 1950 Rev
base
partly
plaintiff
their claim
yet
on the fact that
had not
high
at
arrived
school, and
going
compensa
sustained
from work are not
Testimony
plaintiff
normally
ble.
shows
would
pay
be entitled to
from the time he left home until
*3
job.
special
his return
a
when sent
Also,
on
this is
ordinary
employee going
not the
from his work but one where the
case of an
to and
was en
gaged in a
mission
the interest of and at
employer.
Stockley
the direction of his
See
v. School
Portage Township,
1
District No.
& Detroit we said: the accident did not contends “Defendant because street of Morse’s arise out peculiar common to his work but was hazard was persons neighborhood to which all and a risk to in subject. originally nebulosity were street considerably enveloping the rule invoked has been spend dissipated by later need not cases. We change. say sufficient to time to trace It is if re- it is the rule in that upon this State quires public go street, an ordinary in the hazards street are incurred employment.” course Corporation Murray America, 245 In Widman v. required travel Mich train employment, and while so in the of his course eye by traveling a cinder. affirm- struck quoted compensation ap- ing we an award proval Harry Case, 243 Mass 572 Cook’s 114), 29 ALR NE as follows: *4 with, thus become connected these hazards “When employment, direct and are the to the incidental and cause of of, accidents arise out as accident, such And course of the well as Vassetjr Le Allen Electric engaged in their others own affairs fact, more not are exposed to risks, the same street less does recovery by preclude who is neces- exposed sarily performing to them the duties of employment contract.” applicable rule We believe this class of Company, is well & cases 232 NY court of stated Katz v. A. Kadans NE 23 ALR wherein the 401), appeals said: exposure perils “If the work itself involves unanticipated, infrequent strange, street, the though they may employee passes along be, the pro- streets when on his occasions under the master’s tection the statute.” The court further said that: “Particularly great on the crowded streets of a city, only pavements do vehicles collide, become repair, jostle, out biting and crowds but mad or dogs may weapons, police gunmen may discharge wild, officers run their may fugitives fleeing at shoot justice, may things happen
from or other from which injuries people accidental streets, result to * ** commonly happen and do not indoors.” See, also, our decisions in Kunze v. own Detroit (LRA 1917A, Shade Tree 192 Mich injured boarding 252), where while job job traveling a course while streetcar v. Mc Arnested Nicholas, Mich where the shot searching an unknown deer hunter roadway through route over which to construct woods. ployees’ both we these cases held that the em
injuries arose out of their A jurisdictions holding number of cases from other compensable arising that street are of the that when it itself places may on the street be found *5 ' Reports. Michigan 338
126 many supplemental decisions ALR 126 and in 80 listed ALR books. blue compensation affirmed, award costs Tbe of is plaintiff. to JJ.,
Adams, Carr, and concurred with Bushnell, J. Butzel, (dissenting). I do concur
Dethmers, C. J. plaintiff stress Mr. affirmance. signifi special doctrine. "What is its mission generally that sustained cance? It is held by employees while route or from do not en work employment. of and in the of their course arise Corporation Murray America, v. 326 Mich Daniel of apparent exception 1, and cases there cited. An is special a brain child mission, the case of noted judicial in the statute. construction not mentioned traveling theory or en route is that while special on work mission actually performance em duties for his ployer then therefore, an sustained that, Touching “in the course of” his arises it “out whether also arises of” if one of has held that caused does, this Court ordinary hazards of the street or traffic or of the place performed, the means where which the mission is being deemed connected hazards
such
v. De
incident
Kunze
with and
(LRA1917A,252);
Co., Mich
troit
Tree
192
435
Shade
Baking
Kroger Grocery
Co.,
&
217 Mich
v.
Clifton
Stockley
McNicholas,
488;
223Mich
462;
v.
Arnested
Portage Township,
1
231
District No.
v. School
170);
(24
Favorite v. Kalamazoo
523
NCCA
Mich
Murray
Hospital,
Mich
Widman
566;
238
v.
State
Corporation
245
Port
America,
332;
Mich Morse v.
Konopka
309;
251
& Detroit R.
Mich
Huron
County Road
Mich
Commission,
Jackson
Le Vasseur
Go.
v. Allen
Electric
Chrysler
552);
Transport
ALR
v. Blue Arrow
nothing-
Lines, Mich.
606. There is
in the work
compensation
legislative
men’s
act
indicate a
in
anything
nor
tent,
in the cited or related cases to
suggest,
however, that an
while en
sustained
to or from
route
work on a
mission must be
*6
employment regardless
to arise “out
held
of”
the
of
granting
compensa
source or cause, or that the
of
justified
may
single ground,
tion
be
that
on the
it was
employment
employee hap
of
because
his
that the
pened
place
to
at the
be
and where the accident
when
hapxoened,
showing
a
without
of
causal connec
injury
employment
tion between the
and the
shape
exposure
question.
of unusual
to the hazard in
contrary,
go
On the
the cited cases
no further than to
special
hold that the effect of the doctrine of
mission
employee injured
is
take
to
to
an
en route
or from
position
on a
work
mission out of the
injured
ordinary employee
regular place
going
while
or
to
from his
employer’s
of work in his
established
place
place
posi
of
and to
in
him, instead,
business
a
comparable
injured
tion
to
of a truck driver
driving
performance
in
truck
the
of his duties
employer.
any ques
for his
tion that under such
There has
been
never
injuries
sustained
circumstances
resulting
truck drivers
from the
the
hazards of
road and traffic arise out of and in the course of their
employment.
Corporation
Murray
See Daniel v.
of
supra, p
America,
and
Dennis v. Sinclair Lumber
compensation
& Fuel
cident
work or
employment than
member
locality.
public
to be in the
who chanced
Michigan
point
In
are Klawinski v. Lake Shore &
(LRA1916A, 342);
Co.,
exclusively without human intervention.” Michigan In Tobin Lake & R. v. Shore Southern Co., 192Mich this Court said: “An ‘act of God’ is defined accident as ‘Inevitable enemy.’ public without 29 intervention of man or the Cyc p 441.” Hagenbeck-Wallace Shows, Mich v. Jacobs 535), ap (LRA1918A, this Court 504, 16 NCCA may proved “an act be of God instruction that These definitions a natural cause.” defined as “lightning holdings indicate cases” the no in the cited applied varying law result rule of to be unexpected ing- occa different, occurrences moving it- if nature, forces of one be sioned falling- descending lightning if bolt and another through dropped and the natural causes branch, forces neg nature without human intervention or falling- ligence. by lightning, it such Whether Ryan, pheasant, dog flying bite, as in or a branch, Krug in Levchuk 246Mich Cement Products Steffes, as mentioned in does 589, and *9 Electric Le Vasseur v. Allen arise out of the connection, this it is be noted that is not there one scintilla of any establish, the record to evidence in or from which may inference drawn, reasonable be that- the decayed slightly presence condition of the branch, its falling in the or any- tree, its into the was in street, negligence. wise to human due language employed by
The first this Court in quoted approval Klawinshi, and with in Thier and injuries by Nelson, ning light- with reference to caused equally applicable is to the here caused by falling namely: limb, * * * “It that this is clear was in no
way by employment caused connected through any agency of man which combined with the produce plaintiff’s injury; elements to de-- by employment way cedent reason of his inwas no exposed lightning from other than the community generally locality.” in that following is, also, the from Nelson: showing plaintiff “There is no by here was, employment, any way exposed reason of his in to in- juries erally lightning community gen- from other than the locality question in the in or that there was anything through about which, agency pro- man, combined with the elements to injury.” duce following and the from Thier: by saying opinion, that, in “We conclude bur there tending prove no is the instant evidence case brought by that the death about the extra haz- nature of ardous the As was said enough English applicant court, it is not for the say, happened
to had had must ‘the accident could not have if I engaged not been or if I particular place.’ applicant been this go say, further ‘the accident arose because Michigan Reports. doing my employ- something I was in the course of exposed my I the nature of ment, because was ” particular danger.’ to some “special magic mission” term There no employer operate more liable an to make which can he would mission than on a employer’s estab- at work to an injuries resulting business lished *10 dogs, falling lightning, biting limbs, other causes or long as the so from the disassociated exposed way to no the in mission generally community dangers locality. than the in other such that distinguish the at bar from to case
Plaintiff seeks “lightning the basis that cases” on factual the cited Thier, Klawinsld and Nelson: party injured position own at “The the selected duty being performed no was that accident, time of part nothing regular work, the beneficial a was was employer, being for the the done serving protecting from the was himself in himself weather and storm.” opinions
An examination of the in those cases dis- distinguishing on the that features facts closes these in the de- were not treated as determinative factors cisions. On the contrary, controlling ap- the tests quoted plied language were set forth in the above as opinions in from the cases. those injury To sum this is neither a case of result- of em- Up, ing ordinary from the hazards of the ployment, employment nor, hand, other oc- casioning exposure extraordinary an unusual to degree beyond hazard that others community generally. The award should be reversed aside, set costs defendants. concurred with J., C. J.
Reid, Dethmers, 133. Vassetjr Lb Allen Electric {dissenting). A fair statement of J. the' Sharpe, appears in Btjtzel’s in the instant case facts injured opinion. Admitting that the “in the course of” his does admit out of” that “arose Krug Cement Products Levchuk v. sustained
Mich and the contention of defendants that divided court commission plaintiff of” not “arise out did though “during even occurred course of” that plaintiff reported In that case plant manufacturing work at defendant’s Detroit picked up gravel pit where he taken he city. of the several miles outside sisted His duties con- taking charge pit gravel and assist- loading ing gravel reaching Before trucks. pit, against a fowl of flew some kind the windshield glass causing eye. and shattered the loss of an In that case Court said: proof justifies concluding “Unless the inus particular danger this risk which resulted in
plaintiff’s injury peculiarly was one which was in- work cident to his a caretaker and watchman of *11 gravel pit, it cannot be said that the accident arose employment. Surely, out of his it cannot be said probability plaintiff’s risk being that the or of the injured by pheasant flying or other fowl into the of a riding windshield was motor vehicle in which he was any greater particular because of the fact of his employment as a watchman or caretaker than would probability any have been the risk of locality.” other traveler in an automobile same lightning in that case the Court held that Further, substantially presented the same situation: cases cases this held “In each of cited Court that building person resulting from the or the the accident by lightning being did not arise out of the struck employment; likewise it must be and held Reports. Michigan 338
134'
striking
pheasant
the windshield
case
instant
plaintiff’s
thereby cansing
did not arise
and
employment.”
argues
In the instant case Justice
controlling
the in
lightning
because
are not
cases
through
jury
Klaw
See
“act God.”
occurred
v. Lake
an
Michigan
Co., 185
&
Southern R.
inski
Shore
342);
(LRA1916A,
Widdifield,
Thier v.
Mich 643
Country
Detroit, 329
355;
Mich
Nelson v.
Club
and
any
appear in
record that
not
Mich 479. It does
agency
forces
nature
with the
combined
human
There
breeze
to fall.
was mild
cause
limb
hearsay
blowing.
limb
that the
evidence
There is
decayed.”
appears
Nothing more
a “little
why
one of
be
fell,
that limb
would seem
show
happenings which in its suddenness
natural
those
Ordinarily prudent persons
wholly unexpected.
is
do not
along
inspect
each tree
street
the limbs of
many
they
inspection
travel.
cases careful
are about to
not
about
would
discover
unsound limb
falling
of a limb is
to fall.
In its suddenness
p
lightning.
In 2
Phrases,
similar to
a number
Words and
may
“act
definitions of
of God”
following:
including found,
distinguishing characteristic of an ‘act of
“The
proceeds
that it
from the
of nature
God’
forces
agency.
to the entire exclusion of human
Rice
alone,
Oregon
Line
Short
R.
P
Idaho 565
161).”
directly
exclusively,
which
“Natural causes
produce damages intervention,
human
without
foresight
preventable by
care,
reasonable
liability exists;
which no
God’ for
‘act of
constitute
rule
operates.
poration,
negligence
being
co-
if defendant’s
otherwise
Hydro-Electric
v. Vermont
Cor-
Perkins
631).”
(177 A
106 Vt
*12
135"
Vassetjr
Le
Allen
Electric
However, it does not seem to me critical to the
argument
falling
that the
limb be held to be an “act
point
The
is
the factual
God.”
distinction be
lightning
tween the
by
cases and
instant case made
is
substantial. He
at
does not
tempt any
Case,
distinction between the Levchuk
the instant case.
supra,
he
Instead,
and
relies
Portage
Stockley v. School District
1No.
Town
ship,
(24
170);
his to and work the his does not arise out employment. However, the Court holds that that general exception case fell within an to the rule doing where is service or some discharging duty some incidental to the nature of his employment in the interest of or under direction of employer. recognized it must be However, critical to the decision the fact that in that case required journey make of 12 away regular from her home miles ployment of em- subjected thereby greater hazards. *13 Michigan Reports. ordinarily experience
of travel than she would traveling to from work. and necessarily “The criterion is not that others are exposed dangers to the travel, same of but whether with reference to the nature of his the performance scope of a service within the such in the interest of or direction employer, particularly subjects employee of his to the added danger out of which the accident arises.” (Emphasis supplied.) questionable It is in the instant case whether the subjected danger.” to “added It traveling High seems to me that in to Central School subjected any greater danger he was not to the way of travel hazards than if he onwas his to his regular place supra,
In Case, the Morse the defendant’s em- ployee ordinary working duty after hours had the making deposits, way bank and on his to make deposit such he was car struck which resulted death. In his that case the comment of Chief Jus- concurring illuminating tice Wiest in affirmance is :(cid:127) “I concur in the result. The inwas the- employer, about the street, business of his therefore- the arose using accident, incident to a hazard in street,, the out of the course of “Beyond deciding us, case before I do not care- to be committed.” That case is than the instant in that different case carrying deposit in ease the bank performed by employee. was the Not service to be so, in the instant case. the instant case the- way perform on the the service. supra, nothing Case, The Widman offers new. In Chicago that case the was sent from to the employer. west coast .of the business While rid- on ing in the observation car of a train he was struck .1953] Lb Allen Electric Vasseitr eye by disposed a cinder. The Court language: .casewith familiar very it must be said that the “We think nature of occupation exposed itself him deceased danger risk of an unusual accident of this approval Quoted nature.” Detroit Shade Tree from Kunze v. 435(LRA1917A, 192 Mich 252). Applied instant it cannot case be said that very nature of the of an duties electrician *14 way up ranges any to hook several electric involved by being falling unusual of risk struck a limb. supra, dairyman’s
The Case, Kats involves a performance chauffeur who onwas in streets of by Again when his duties a stabbed madman. a appears compared factual distinction when with the instant in per- case in that case the service employee performed formed on the streets. language However, there is in that case peculiarly applicable to the case at bar: but where the risk is of to the street. must result street; bombs tinguished pose but duty his reason of 693, 118 [1918] “Cases that is to his to House LT special danger persons may arise employer.” from enough from dropped by enemy Lightning of Lords, 34 those TLR if the workman where one is hurt in the street, in 324, S J general houses. Allcock v. 11 BWCC 149 strikes and in the a street risk7 to make it nature, in fortuitously aircraft 421). inis discharge street not The do place by peculiar Rogers, danger as LJKB his of dis ex being applied As the instant case risk of peculiar by falling not a risk to the struck limb is being street than more is the risk struck lightning. Reports. Michigan supra, en
The Kunze involves an Case, gaged trimming planting He was in trees. and jured job proceeding The while from to another. one Court said: very of to “We think must be said that the nature exposed occupation him deceased itself danger
the nature.” risk of this unusual accident may justified decision ground group rep that it within a cases exception general resenting an established to the ordinarily injuries go rule that to an while ing regarded arising from work are not scope of and in the of his when the em ployee perform way onis his some service discharge duty or to incidental to some the nature the interest of or under employer the direction of his or where the way Cajes is on such a home mission. of this character are in 142ALR 885. How collected exception recently repudiated ever, has been Phillips Michigan. Fitzhugh Motor injured employee returning Mich having home after rendered a service his em ployer, at case bar the was- *15 going to a he where could render a service to employer. opinion The writer of wrote this opinion dissenting Phillips in the Case. I now feel opinion majority bound in that case. The- majority opinion Phillips in the Case relies on Daniel Corporation Murray v. America, 326Mich 1: of compensation may be due the “In order arise out of and also be received in the must both enough.” Neither alone is course of approval Case, from the McNicol's Quoted with 306). NE 697, LRA1916A, Mass 497 Vassetjr Le Electric Allen opinion Mr. eliminates the The of element that arise out of risk causal between the that result- Some connection ed should duties required. being he by In the case at bar the risk struck highway falling traveling public on a limb employee’s no with had connection duties of up ranges hooking high at the school. For electric the reasons I above stated concur reversal, costs defendants. J., did sit. not
Boyles,
STATIONS,
DRIVEURSELF
v. HERTZ
PEOPLE
INC.
Carriers —Lessor
of Trucks.
Automobiles —Contract
1.
subject
to license as
contract motor
of trucks was
Lessor
act,
under motor
where it
property
carrier
furnished
carrier
insurance,
fuel, oil, lubricants,
repairs,
tags, garage
license
equipment
paid
to a lessee who
other
for the
rental
service
mileage,
possession,
took
furnished its.
largely on
sole
based
(CL 1948,
transported
property
its
477.1
own driver and
own
§
seq.).
et
Equipment
Carriers —Leased
2. Same —Motor
—Constitutional
Law.
leasing
regulation
equipment
business of
motor
to a
lessor exercised no control whatsoever
lessee over
whom
[4]
[1-3]
[1-3]
When automobile or truck
tion” or
motor carriers and contract
or ordinance.