Thomas v. Certified Refrigeration, Inc

v REFRIGERATION, THOMAS v CERTIFIED INC of Court Employer’s Compensation 1. Workmen’s —Deviation Business —Personal Mission —Precedent. Inc, (1945), Transport, Mich 250 Conklin Industrial which slight carry deviation to out a held that even a preclude compensation an award of mission would workmen’s changes compensation law, in the due to basic workmen’s is no Michigan. longer controlling precedent in Compensation Respondeat Superior Scope 2. Workmen’s — — of Em- ployment-Course Employment. of Respondeat superior "scope employment” longer are no principles underlying passage compensa- of workmen’s legislation; compensation tion workmen’s does not involve the respondeat superior recovery doctrine of concept scope turn cases does not common-law upon statutory requirement but of course of Compensation Employment 3. Workmen’s —Course —Personal Mission. A workman’s "arose out of’ and "in the course of’ his employment, general if the facts establish that he acted under acceptance by vehicles would be personal purposes used from time time for where he was truck, injured driving while furnished and owned employer, employer permitted from his home where his him to keep overnight it and deviated from his normal route to work daughter to take his to school. [9,11] [1, 5, ^{[7] [2] [8] [4]} 3, 58 Am 58 Am Am58 Am 58 Am Workmen’s 6,10,11] Jur, Jur, Jur, Jur, Jur, Workmen’s Workmen’s Workmen’s Workmen’s References 58 Am Workmen’s Jur, Compensation Compensation Compensation Compensation for Points in Headnotes Compensation Compensation 2.§ § §§ § 26 et 217 et 14,19. §§ seq. seq. 530 et §§ 240, seq. 241. 392 Going Injuries to and from Work. — Workmen’s going Generally, injuries to and from work are not sustained compensation. compensable by workmen’s Purpose. Compensation Excursion —Dual 5. Workmen’s —Private totally private using excursion such as but An authorized personal certainly company for weekend errands is vehicle not compensation trips because such workmen’s lack a covered furthering employee’s purpose an own interest and dual of at performing employer a service the or the same time employment injury. between the and the sufficient nexus Compensation —Personal Business Detour —Devia- 6. Workmen’s Employer’s Employ- of tion from Business —Circumstances ment. personal employ- is not a circumstance of the A business detour ment, great that the deviation dwarfs if it is so the business trip; any compensation portion of the workmen’s case the against clarity must be balanced nature of the deviation the of activity authorization and effect of the on the relationship employer. of the or the interests Unemployment Compensation Compensa- —Fault—Workmen’s tion. Unemployment compensation grounded properly theory is on a compensation fault in is denied the which when fault of an established, employee compensation is but in workmen’s cases questions place of fault have no in the deliberations on the compensation. issue of

Dissenting Opinion Coleman, S.M. J. Interpretation—Fraud—Findings 8. Constitutional Law — Compensation. Fact —Workmen’s Michigan’s says Constitution that "in the absence of fraud unless provided by ñndings otherwise law” "in fact workmen’s compensation conclusive”; proceedings language shall be such (Const 28). 1963, 6, interpretation does not admit art § Compensation Findings Supreme 9. Workmen’s — of Fact — Court— Constitutional Law. only Michigan Supreme recognize Not must the Court and not Bnding compensation overlook a aof workmen’s referee that prohibition by defendant-employer against the use of personal driver-employees owned trucks for use on business Thomas v established, constitutionally but Court has been is com- (Const 28). 1963, 6, pelled accept ñnding such art § Compensation DuauPurpose 10. Workmen’s — Rule. Employee contrary acting employer who the rules of his may protection dual-purpose claim the of the not rule in a compensation workmen’s case. Findings of 11. Workmen’s — Fact —Personal Mis- Employment. sion —Course Employee’s claim for workmen’s must fail where findings employee acting that of fact were was not injury at of the the time under orders of his nor were furthering his actions the business of the and the Compensation Appeal agreed referee and the Workmen’s Board plaintiff employee; mission did not suffer an out of arose or in the course of his Appeals, Court of Division T. M. Burns, J., Fitzgerald, P. and R. B. Burns and JJ., denying leave application for to appeal an order of the Compensation Workmen’s Appeal (No. 5, Board. 1974. Submitted June 10 June Term 1974, 54,600.) September Docket No. Decided

Claim Forrest against Certified Re- Inc., frigeration, and Michigan Mutual Liability Company compensation. workmen’s Suzette Thomas, administratrix of the estate Forrest Thomas, deceased, plaintiff. substituted as party Award denied. Court of Appeals plaintiff’s denied application for appeal. appeals. Plaintiff leave Remanded Workmen’s Appeal Board proceedings. for further

Glotta, Dinges, Adelman & for plaintiff. LeVasseur, (E.R. Werner, Mitseff & Brown Whinham, Jr., counsel), for defendants. Mich op issue this case is whether J. Williams, garage a vehicle allowed employee, an overnight, seriously injured on his his home at during daugh- a detour to deliver his to work way school, injury an that "arose out of’ suffered ter to deciding "in of’ his the course following questions three issue the must be resolved:

1) Inc, Transport, Is Conklin v Industrial (1945), which held that even 20 NW2d personal out a

slight carry deviation to mission compensation, good still law? preclude would 2) which off injury compensable Is occurs during

employment premises ap- an personal activity, where there is proved some interest? general employer 3) compensable Is which occurs off premises during

employment activity unapproved by but where the ac- is incidental to the relation- tivity ship? question negative

We answer the first Compensa- remand the matter to the Workmen’s proceedings tion Board for further not inconsistent with our observations on the last questions so that those matters may two be more fairly parties considered the board and now Conklin no longer controls.

I —FACTS 1, a.m., May On at Forrest approximately Thomas, van, plaintiff1 driving while a Chevrolet collided with another on northbound vehicle result, and, Southfield Freeway near Road as a Joy Thomas, August Forrest Thomas died on 1970 and Suzette party plaintiff. administratrix of his estate was substituted as Thomas v Court totally disabled permanently until his 6, 1970. August The truck death Thomas was owned driving was furnished and the defend- Inc., Refrigeration, ant-appellee, Certified who had refrigerator as serviceman employed since received that the van

Testimony was was de- maximum signed provide payload to for wheelbase presented result special and as a safety allowed in protection hazards the driver had no front-end collisions and there was partition no between the driver and the back of the van. Testi- mony given also was Thomas owned a Ford which safer structurally than the van and to which he would have used drive to work had he night. not driven the truck home each Thomas would drive the truck to work in De- Heights troit from his home Dearborn and was required report by 8:30 a.m. each working day. He proceed would then to make daily his service calls and drive home at the end day of the without first reporting back to his employer’s premises. All and, permitted fact, drivers were took home trucks they although drove this action was not required employer. Testimony was received that by allowing the trucks to remain at employees’ overnight, homes the employer saved costs of enlarging parking facilities and install- ing security devices. The trucks carried the com- slogan, name pany equipment contained nec- repair essary refrigerators equipped and were with two-way radios so that the serviceman could be directed to service calls in emergencies without first reporting to work. day

On the of the accident Thomas deviated from his normal route to work and was on his way pick up daughter at her home near South- 623 392 op Opinion the Court Plymouth Road to take her to school. The field and planned upon to take to work route which daughter dropping at school is unknown. the The expressed policy prohibiting employer had an using per- driver-employees the trucks for from plaintiff fully cogni- use, of which sonal testimony indicating However, was received zant. that acquiesced to some forms of personal had been fired or use. No other- using personal punished the trucks for wise though employees several had been business even personal while on involved in accidents missions. hearing referee, 21, 1969, on March found did not arise out of and the course of Compensa- plaintiff’s employment. The Workmen’s Appeal September 1, on tion Board affirmed granted appeal May 31, and this Court leave to 1973. Mich 795. The defendant moved for granted. reconsideration which was 390 Mich 771- (1973). Application appeal for leave to granted then on November 1973. 390 Mich 797-

II —CONKLIN Compensation The Workmen’s Board in opinion upon forthrightly its challenged in this case relied but stringent

this Court to review the rule Transport, Inc, in Conklin v Industrial 312 Mich (1945) light today’s 250; 20 NW2d 179 in the law. The board said: slight furthering "Even such a deviation employer’s purpose carrying business for the sole plaintiff’s mission would be a bar Work- men’s claim. Trans- Conklin v Industrial (1945).

port, Fortiori, particular 312 Mich 250 A in this plaintiff case was not in the course of his accident, at the time of even because he had not Thomas v op path from which to entered a business-connected devi- ate. might Supreme Court in 1972 interpret "Whether differently ago law than two up decades is not speculate.” this Board

In Conklin Starr Chief Justice with absolute accuracy ample precedent and the reflected of law compensation day. However, workmen’s of that the of compensation basis the workmen’s law has changed radically Conklin is since that and day, Conklin relied on longer controlling. apt no nor scope analysis: the of employment present "The is controlled case our decision in Jodawelky, Jeffries v. 304 Mich. 421 (1943)], NW2d 121 [8 in said: which we " 'If it be assumed that the route Jodawelky intended feasible, though shortest, to take was not the such facts would not if the em- liability fasten on the employer ployee departed scope had of employment the engaged and was on business to himself.’” Conklin.) (Emphasis 250, in 312 Mich Jeffries in re- was an action negligence invoking spondeat superior. Respondeat superior "scope of employment”, as Court Crilly stated Ballou, 353 Mich (1958) 91 NW2d 493 are longer: no principles underlying passage compensa- the of "[T]he legislation.

tion Scope of employment uses, its has it is true, application in the respondeat of the doctrine of superior. superior respondeat But does not involve recovery in compensation cases turns not concept the scope, common-law but upon statutory requirement employ- of course of ment. distinguished 2 concepts fact, have a different content. that, subject students of the have stated 'perhaps important guide’ most interpreta- for the expression tion of 'arising out of and the course Opinion of the Court it to 'realize that should be employment’ is of his phrase "scope technical from the sharply differentiated designed to circumscribe area of employment” ”2 persons.’ liability third vicarious response the Workmen’s Our they properly is therefore Board continuing question Conklin’s valid- raised controlling precedent. longer ity. no is Conklin ipsa legis, et lex. cessat Cessante ratione —PERMITTED PERSONAL ACTIVITY Ill from the facts that It fair is a conclusion employees of Certified Re- and the other Thomas frigeration, performing for service Inc. were caring taking company company home, vans displaying name and them there and slogan establish, in addition them. If the facts on clear, not that Thomas acted under and this is acceptance by general that time used from time to vehicles would be personal purposes, appear then it would of Burchett v Court on the basis of combination Delton-Kellogg School, 231; 144 378 Mich NW2d (1966); Detroit, 102; v 377 Mich 139 337 Howard (1966) Beaudry Watkins, 191 v 677 and NW2d (1916) justified 445; 158 16 would in Mich NW be finding injury of’ "in that Thomas’ "arose out of’ the course compensable Burchett,

In an this Court found 2 Apartments, upon v Marion Manor Conklin also relied Meehan (1943) 262; light v 9 534 of Whetro 305 Mich Awkerman, NW2d which (1970), 235; 174 783 is of doubtful 383 Mich NW2d Tanis, (1948); (1953); Haggar 295; 219; today. validity 876 263 v 320 Mich 337 Mich 30 NW2d 59 NW2d Sears, Co, Carner & v Roebuck Roofing Co, 400; Weersing Insulating Mich v and NW2d 630 deviations were based Airseal & (1953) involving recovery in also situations which denied employed upon reasoning similar to that controlling longer question. Conklin likewise are no on this Thomas op injury while enroute school a school required job bring teacher her school work held, every night. through home We Chief Justice M. although T. what the em- Kavanagh, doing might was further her ployee interest,3 own so compensable her as long was she was at performing the same time service for her em- T. Chief M. ployer. Kavanagh Justice capsulized rule as follows: rule simple "The has been reduced to a formula: If a special trip had would have to be made if had not going combined this service with his coming or 231, trip, dual-purpose applies.” rule 378 Mich Kroger Co,

See also Clifton v & Grocery Baking (1922); Anderson v 462; 187 NW 380 Co, Kroger Grocery Baking & 326 Mich (1949). NW2d 209 Burchett

In trip the entire wholly was dual- In purpose. part of the trip was predomi- personal, nantly although trip overall dual-purpose. Howard, in Burchett, pointed as out

"[p]laintiff Howard was concededly his own time and performing no for his employer.” service 378 Mich 234. The Howard were that facts the employee driver a morning bus had run and an run quarters afternoon with from three of an hour to five hours in between on different days. While food was terminal, available at the Howard normally went home and going home the day injured. he was Justice speaking for this O’Hara Court said "it was a circumstance employ- ment placed plaintiff that case this where he 3Generally, injuries going sustained in to and from are work not compensable. Co, Lipinski 647; v Sutton Sales 220 Mich 190 NW 705 (1922); Co, 39; (1936); Dent Ford Motor 275 Mich 265 518 NW Ditch (1956). Corp, 178; v General Motors 345 Mich 76 NW2d 64 623 392 Mich 632 (377 injured.” accidentally Mich when he was was Furthermore, this Court said: 102,110.) plaintiffs that no incident unmindful are not “We required him in an sense to absolute leave employment 5-hour interval. If he during the did the terminal certainly required not to travel was leave he choose Howard.) 102, 377 Mich (Emphasis by automobile.” 109. said "it was a we have indicated

Yet as Court up employment” that set the of his circumstance injury. in Howard is found principle similar

A Building Components, Michigan in Nemeth v (1973). case, That 734; 213 how- Mich NW2d than ever, factory in a rather work involved Nemeth, as Thomas. the driving case such employee stay the after permitted employer machinery use company work and operat- when employee injured purposes. through This Court ing equipment. Justice held that the derived the benefit Levin maintaining good rela- promoting employee tionships allowing employee to use com- after hours and concluded that: pany equipment "There is a sufficient nexus between injury case an sustains an and the where provided using equipment injury while employer’s premises recovery on the so that should be though regular allowed even occurred after being working equipment for a hours and used employer’s purpose other than manufacture of the products.” 390 Mich Watkins, Finally, Beaudry v (1916) reluc- delivery boy, deals with a NW given permission to tantly lunch home between v Certified Opinion the Court of errands, his being injured way on from home to job, next truck he holding the when the was on to him off turned and threw quickly bicycle his under following the wheels of the truck. This Court compensation though affirmed even he was on a detour.4 in Beaudry vte allowed compensation

So during return the from an authorized deviation and in Burchett permitted compensation we an em injured during serving ployee trip a a per dual sonal and business purpose. These cases combined Howard, compensation with which authorized injury some instances where the during occurred involving activity personal an a purely purpose, Thomas, would if personal cover indeed the pur pose general was a matter of tolerance in of view the in the interest employee garaging of trucks, etc.5 4 Beaudry delivery boy returning personal In was a errand (lunch) completed personal yet while Thomas had not as his mission school). (picking daughter up taking However, his and her path jurisdic Court will not taken some follow courts other granted compensation rigid which tions have or denied based on rules personal completed such as whether the mission was and the em ployee Accident Co returning was to the business route. See London Guarantee & Herndon, (1950). App 81 Ga 58 SE2d 510 In that returning reports, case an was home to make out business past but drove the turn nearest his home and continued in direction away process turning from his ultimate In destination. of his home, vehicle around to return he was killed. The Court stated stopped attempted because at the moment he and to turn around he employment, resumed the lowed. duties and was al However, suggested any point passed the Court that after he around, stopped scope his turn but before he to turn he was not in the recovery and would have been denied. Beaudry placed importance the Court on the fact during boy accident occurred within the time em- which the ployed. to Thomas occurred had after he commenced to bring employer’s place business, thus, the truck to his during within a employed time which he was took when the accident place though actually reported even he had not for work. 5Testimony suggesting was introduced that the knew of acquiesced uses of vehicles servicemen several occasions: steward.) (Testimony Miranti, A. of Charles union Occasionally they up, yes. "A. come op use of a every authorized suggest do not

We from a busi- or deviation vehicle company-owned Crawford, president transported you Mr. of the "Q. Have ever company, your truck? up morning. picked couple Yes, have, him I have I in the "A. brought in to work. him home and times from "Q. why And is this? something, Oh, the car or and I had to trouble with "A. he has had pick up. go and him "Q. you with him at these times? a conversation Did ever have personal Yes, it if I ever used for me "A. one time he asked yes.” and I said business Miranti.) (Testimony of Charles B. steward, any grievance "Q. years has been filed or union Four as personal firing any employees suspension for use of trucks? of or trucks, personal no. 'A. Not use of driver, being against you grievance any any filed "Do know of company company repairmen, for of other than use vehicle business? No, "A. sir. years? "The That’s in the last four Referee: years, yes, "A.In the last four sir.” Crawford, (Testimony company president.) C. of John Robert Crawford, anyone "Q. any sus- I see. Mr. at time has ever been using your personal pended or trucks on business? fired for fired, paid they Suspended they for two trucks that "A. or have business, they’ve suspended. damaged personal never been but "Q.He in a truck and had a wreck? police report "A.That was. was what "Q. suspended Was he or fired? No, "A. "Q. sir. damage just paid property to the truck? He for the Yes, "A. sir.” Crawford.) (Testimony D. of Robert John Crawford, they "Q. you of coffee that I Mr. are aware breaks see. take? am, I”A. sure sir. there, "Q.They go around is and assemble at different restaurants right? Yes, "A. sir. Refrigeration "Q. gathering at trucks And there is a of Certified different restaurants within the area? several cards, so, imagine They put one- their time "A. I sir. all coffee on quarter hour. go "Q. you Did them? ever over and talk to once, sir, ago. Only years "A. about four Thomas Opinion of the Court within this route will fall triad An ness cases. private totally excursion but such authorized as using personal vehicle for weekend trips certainly is not covered such errands because required by purpose Burchett "a lack dual or between the and the sufficient nexus required injury” If a Nemeth. business great detour is so the deviation dwarfs the portion trip, longer it of the no business can be employ- [the] said that it is "a circumstance of required by ment” as Howard. This Court will not attempt any any formula, fix but in case the against nature of the deviation must be balanced clarity authorization and effect the activ- ity employment relationship on the or the inter- employer. ests of the recognize

We that Workmen’s accepted finding Board referee’s "[prohibition by against Defendant use by driver-employees of trucks for use personal business”.

Obviously this Court not does overlook that finding, but in of view the fact is Court remanding the matter to the board for further opinion, consideration not inconsistent with this may permit parties the board wish the ad- point despite dress themselves to the an expressed company policy forbidding personal use by employees, employer acquiesced the use by personal purposes the trucks drivers for by employer whether such tolerance the encom- passed degree the nature and of deviation contem- ”Q. they And were all scattered? They "A. buy scattered when I came in. I couldn’t them their coffee. put This before I made them it on their time cards. you phone concerning Have ever received calls number "<?(cid:127) Refrigeration scattering particular parlor? trucks at a beer department, "A. I’ve received from one a commercial yes, trucks.” 623 Mich op day by plated on the the accident took determining acquies- place. there whether employer, implied agree- part of the on the cence ments understandings between or specific employer’s per- employees, reaction to past and the in the nature of the sonal uses employment may itself be relevant.

IV —UNPERMITTED PERSONAL ACTIVITY per- it that Thomas’ detour If were found for through employ- business was authorized sonal acquiescence manner, or in some other then er’s it unnecessary to consider the further would be whether issue compensable is which occurs off during employer’s premises personal activity unapproved by but where the activ- ity relationship. reasonably is incidental to the impression.

Such consideration would be of first Crilly It would extension of involve the the rule (1958) Ballou, 303; 353 Mich 91 NW2d 493 to the factory open its normal locale road. might Such an extension well fall within general policy enunciated Justice T. G. Kav anagh v Awkerman, 235, Whetro (1970), where he said for this NW2d Court: purpose "The of the act as set forth in promote its people title is to the welfare of the Michigan relating liability employers inju- legisla- ries or death employees. sustained their provide policy tive to the victims of is to financial and medical benefits efficient, injuries work-connected in an dignified, and certain form. The act allocates the bur- payments den of such appropriate the most source of payment, product.” the consumer of the certainly animating policy That was the Crilly. v Certified op might it said that compensa- be workmen’s In fact tion, heaven, like rain gentle upon the falls long alike so just and as unjust the the injury out the employment arose ambience.6 in Crilly, Justice Talbot in reaching his Smith the deviation from regular conclusion that work as commonly horseplay part known of the environment and hence employment injuries re- compensable, therefrom were sulting quoted from Garage, Penn 19 NJ Secor Service 117 A2d (1955) as follows: " automaton, and, employee 'An not an is even when efficient, highly he is he will some extent deviate uninterrupted performance from the of his work. Such deviation, light if it minor in be considered the of the time, circumstance, particular place and realistically is employee viewed and the as a normal ought incidence relation and not in day legally breaching this be as viewed the course high purposes Fulfillment of socially thereof. of our important broadening compensa- and ever workmen’s suggests approach tion nothing act this in the ” statutory any position.’ terms dictates narrower Whether and what kind extending rule to the Crilly vehicle cases should be adopted by this may Court not need to be confronted Court, if acceptance some form of or tolerance of private purpose driving is found on remand. event, any this Court would be better prepared to record, consider the matter with a Workmen’s regard important distinguish compensa In this it is workmen’s unemployment compensation. properly tion from The latter is grounded theory on a of fault in which is denied when established, compensa of an fault is but workmen’s questions place tion cases of fault have no deliberations compensation. issue of Mich Dissenting Opinion M. S. Coleman, J. opinion Compensation Appeal Board and briefs of specifically directed to counsel that issue.

V —CONCLUSION response already indicated, in As we hold to the Appeal Compensation question Workmen’s Board changes Conklin to basic in that men’s due the work- longer controlling is no law precedent Michigan. We have examined the questions other two raised this matter but do justified ruling definitively not find we would be parties on either as both and the Workmen’s Compensation opportu- Administration deserve an nity prepare arguments record, to decision and case, directed to our observations in this and we in necessary, position turn, if would be in a better justice do for all concerned.

The matter is to the remanded Workmen’s Com- pensation Appeal proceedings Board for further opinion. not inconsistent with this This Court jurisdiction. retains

Costs to abide the final result. J., T. M. C. and T. G. Kavanagh, Kavanagh, Levin, JJ., Swainson, concurred with Wil- liams, J. (dissent).

M. S. J. The decision of the Coleman, Compensation Workmen’s Board should be affirmed. The facts demonstrate the em- ployee’s injuries did not arise out of or in the employee’s injuries course his The were not actionable under the Com- Workmen’s pensation although remedy Act, he is not without elsewhere. employee injured

The was when the truck he driving was struck the rear end of an automobile. Opinion Dissenting Coleman, S. J. M. at around 7 The accident a.m. occurred on the morning May going three or so daughter’s residence miles to give her a ride to of his home school. north He place to be at his at 8:00-8:30 It to the east of was located his residence. a.m. found, the The referee Workmen’s agreed proves and the record clearly Board by or on behalf of "that evidence submitted Plaintiff this Referee that at the time of fails truck-auto accident convince said carrying Plaintiff any out performing or of his nor was he order any orders duty further or duties to the business of his em- rather, ployer, Plaintiff personal but that his mission was to the employee.” prohib The record also shows that the employer company ited use of trucks for the employees’ personal Although no employee business.1 was dis following during taking The remarks made deposition: Sir, "Q. you company against using are aware of a rule the trucks personal for business? "A.Yes. "Q. you suppose your So all were to do is drive the truck from again, directly home to work and then home isn’t that true? "A.That’s correct. "Q. you suppose your personal And were not to use it for own affairs, isn’t that correct? personal "A. for Not affairs. "Q. suppose strictly company you It was to be business whenever used the truck? "A.Yes.” president part: The of defendant testified in you any "The Referee: Are aware that of the trucks there’s posted any prohibition against using personal the trucks for use or for carrying passengers other than driver? posted "A.We have this on the last several different occasions over years. numerous "The Referee: In the truck? truck, we, dispatcher "A. in the Not and the hands them a memo. your "The Referee: Defendant’s Exhibit 1 has been admitted. Is this signature? Yes, it "A. is. Dissenting Opinion M. S. Coleman, J. use, charged any for vehicle or such other damage occurring during personal business became 2 The employee’s liability. employer did not even use of the tacitly condone company vehicle for personal purposes. findings,

On the basis of the factual the referee 13,1966, April "The Referee: is This dated is that correct? "A.Yes. prior "The Referee: Have there been notices? Prior, yes. "A. "The Referee: There have been? "A.Yes. proceed said, prepared, you "The Referee: You to have them then they are what? Normally, "A. way get, give Handed to the man. the best it to pay them is with the check.” company president testified on cross-examination: "Q. Crawford, any I anyone see. Mr. at time has ever been sus- pended using your personal or fired for trucks on business? Suspended fired, paid they "A. or have they two trucks that damaged business, they’ve suspended. but never been "Q.He was in a truck and had a wreck? police report "A.That was what the was. "Q. suspended Was he or fired? No, "A. "Q. sir. just paid property damage He Yes, for the to the truck? "A. sir.” explained On redirect company examination he further policy: "Q. There was more than one only occasion or was that occasion? "A.Just two of them. "Q. you That recall? "A.That I know of. "Q. situation, say Let’s take another let’s the man is involved in a business, Company you charge it, collision on do him for then? No, "A. sir. "Q. you any Do have insurance for collision? No, "A. sir. So, "Q. Company business, it; if you pay it’s for if he is on his own personal right? him, you it, business and pay catch then he has to for is that Yes, "A. sir.” company The personnel official who ran the office and handled financial matters testified employees as to two instances where were required pay damages to company for vehicles. He said that Mr. Thomas caused damages himself had company been billed for to the vehicle by the accident in the instant case. v Certified Dissenting Opinion M. S. J. by Coleman, personal by sustained held "that the Plain- * * * pf of out and in tiff not arise did course by employment employer, and, said Defendant his accordingly, compensation is denied.” The Work- saying men’s Board affirmed plaintiff particular case "in this was not in the employment at the course dent, time of the acci- he even because had not a entered business- path connected from which deviate.” The board plaintiff held if had that even "entered business- path” connected the claim would be barred Transport, Inc, Conklin v Industrial (1945). 20 NW2d 179 The to Conklin board’s reference was made with regard quired posed hypothetical to a and was not re- holding judg-

for its case. I reserve continuing validity ment on Conklin’s until a case involving employee’s arises an deviation from the purpose normal of course the sole carrying personal out a mission. Conklin does applicable not state rule of law to our facts. unnecessarily overruling Conklin, addition investigation the Court has remanded this case for general of whether "acted under acceptance by vehicles personal would be used time to time for purposes”. unnecessary. Such action is likewise says 6, §28

Article of our constitution that "in provided by the absence law” fraud unless otherwise findings fact "in workmen’s proceedings language shall be conclusive.” Such interpretation. does not admit Also see MCLA 413.12; MSA 17.186. "[prohibition found referee Defend- against Company

ant the use of owned by driver-employees trucks for use on 1) (D. been business has established ex. No. with by agreed. concurrence Plaintiff.” The board Mich 623 392 642 Coleman, Dissenting Opinion M. S. by J. "recognized” finding The Court has and said finding”. only Not "does not overlook it must "recognize” finding, "not overlook” such we constitutionally compelled accept we are but finding. such employee’s during accident

The occurred purely personal activity undertaken before he re- began assigned ported to or his work duties. The opinion do cases indicating not sustain an cited injuries resulting from such an compensable under are accident workmen’s compensation law. Crilly Ballou,

The workman 353 303; (1958), 493 NW2d sustained an while throwing shingles. claimed such conduct was not within the course of compensation requiring The Court awarded "that there work, be a causal connection between the or working thereof, conditions, incidents injury”. requirement Such "serves exclude personal, purely disputes”. nonwork connected Fidelity Casualty Also see & Co of New York v (1971). DeShone, 686; 384 Mich 187 NW2d 215 Detroit, 102; Howard v 377 Mich 139 NW2d (1966), plaintiff sought compensation inju- returning ries received while to work for the sec- split ond half of his shift. The Court noted that "plaintiff day’s had not finished his work.” The following facts taken from Kerbrat, Bisdom v (1930), Mich applicable: NW were considered cited, plaintiff "In dinner, the case was enroute to his thereafter, returning rather than special but cir- specific cumstance was created requirement of his day. on that It resulted from a direct order application and had no any other day. point The essential abides. The circumstance was a 643 v Dissenting Opinion M. S. Coleman, J. by working normal regular It from his schedule. deviation and employer’s for his benefit was an incident of was his it Thus employment. contract of was that a circum- placed him employment where he his was at stance too, injury. it time of accidental So was a his placed plaintiff of his circumstance when he was accidentally case where he was in- jured.” denying an order benefits and

The Court vacated to award the employee instructions remanded with Watkins, Beaudry 191 see Mich benefits. Also (1916). 445; 158 16 NW School, Delton-Kellogg Burchett v 378 Mich (1966),

231; 144 NW2d established following The "dual-purpose passage rule”. Co, & Kroger Grocery Baking from Clifton v (1922) support: was cited as Mich 187 NW general application its full to common "This rule has during employees who work and other stated laborers specific places, they through and when are hours at the please, ployment for day go they they like and do as are free to where responsibility no further under their em- with perform employers their until duty or for working begin day they again until hours the next or they If in resume their the meantime are going doing accidentally injured while somewhere or they wholly some act protected sarily apply for their own benefit are not But not by the statute. that rule does neces- injured yet acting employee where the is scope employment, carrying within the orders of his further of his out the performing duty some going he was or the latter’s business. Where doing might what he was but would not also further his own interest him recovery. it itself bar ^{[*] [*] [*]} imposed plaintiff performing daily duty

"That by distinct orders of at the time and as required undisputed, employmeiít is terms support there is evidential the conclusion of 392 Dissenting Opinion M. S. Coleman, J. peculiar board that there were circumstancessurround- ing this case.” reserving my judgment "dual-pur- While on the pose employee rule”, I do not believe the in this protection. may case claim its The was, acting contrary fact, in ployer. to the rules of his em- findings of fact in the instant case were that acting employee the employer was not under orders of the furthering nor were his actions the busi- employer. ness of the The referee board agreed the "mission was to the employee.” Plaintiff support employee’s

I find no for the claim the compel They cases cited above. me to conclude that the claim must fail.

I believe the referee and the Workmen’s Com- pensation Appeal proper legal Board reached a conclusion based on the established facts. The did not suffer an that arose out of or in the course of his

I would affirm. J. W. J., did not sit in Fitzgerald, case.

Case Details

Case Name: Thomas v. Certified Refrigeration, Inc

Court Name: Michigan Supreme Court

Date Published: Sep 6, 1974

Citation: 221 N.W.2d 378

Docket Number: 10 June Term 1974, Docket No. 54,600

Court Abbreviation: Mich.