Carner v. Sears, Roebuck & Co. , 337 Mich. 219 ( 1953 )

Boyles, J.

(dissenting). Plaintiff, as the widow surviving her husband George Carner, was allowed dependency compensation^* by the workmen’s compensation commission because of his death from an injury received while an employee of the defendant company. On leave granted the defendant appeals in the nature of certiorari, and the principal question involved is whether his injury arose in the course of his employment. Plaintiff’s decedent was employed by defendant in its retail store in Battle Creek as a salesman-serviceman in its sewing machine and vacuum sweeper department. A sewing-machine customer who lived in Marshall, 12 miles east of Battle Creek on US-12, had requested that he deliver a certain sewing-machine attachment to her home. At noon, November 23, 1949, while eating lunch at home he told his wife he had to deliver a buttonhole attachment in Marshall and show how to use it, and suggested that they go together to her sister’s home in Marshall for supper. She made the arrangement by telephone with her sister, and later went to defendant’s store in Battle Creek, from which place they left together for Marshall shortly before 4:30 p.m. They arrived in Marshall about 5 o’clock. Before delivering the appliance he drove to the home of her sister where they were to have supper and left his wife there. In doing so he drove his car into Marshall east on US-12, past the Linden street intersection where he could have turned north 2 blocks and east a half block on West Prospect street to his customer’s home. After leaving his wife, some considerable distance across the town in the southeast part, he drove north as far as Prospect street, on which his customer lived, and was then proceeding west on Prospect street toward his customer’s home to deliver the appliance when his automobile was struck by another at an intersection about 6 blocks east of the home where he was to make the delivery. He died as a result of the collision.

Plaintiff concedes that the decedent had deviated from the ambit of his employment by passing Linden street and going to her sister’s home, but claims that the deviation had ended and that he was again carrying out work for his employer on the way to his customer’s home on Prospect street when the accident occurred. The commission awarded compensation on the ground that he had completed his personal mission which caused the deviation, and that he was injured while within the ambit of his employment.

Mr. Carner’s personal mission was solely to leave his wife at her sister’s home and the finding of the commission that he had completed his personal mission before the time and place of this accident is supported by competent evidence. However, the finding that he was engaged in the course of his employment, in the business of his employer, at the time when and the place where he was injured, is not quite so obvious. Pie was not on the most usual or direct route to be followed in the course of his employment to make the delivery, but had deviated therefrom and was approaching the place of his delivery on the proper street but about 6 blocks distant, and from an opposite direction, when injured.

Mr. Carner’s employment was not limited to working in his employer’s store during working hours from 8:30 a.m. to 5 :30 p.m. His work included selling and servicing sewing machines outside the store, in a territory including Marshall and Calhoun county, a radius of approximately 25 miles. Pie solicited sewing-machine customers and serviced machines within his territory, either during daytime working-hours or afterward, sometimes at night. He used his own car, had discretion to come and go as he saw fit in order to promote sales and also to service machines. Where or when he would go on business for his employer, such as calling on prospects, delivering or servicing machines, was left to his own discretion. He was expected to make sales and service machines whenever he could, within his territory. In connection with his driving his automobile in the servicing and sale of sewing machines and other appliances, he was allowed mileage for the use of his car and paid both a salary and commission. Such circumstances distinguish the instant case from various decisions of the Court where an employee who is required to travel and return in the most direct route has deviated therefrom for his own personal use, cases where the injury occurred during the course of such deviation and before return to route, and at a place where the employee at the time of injury was not in the course of performing any mission or duty for his employer. In such cases it has been held that the employee had departed from the scope of his employment on a personal mission, had not resumed work for his employer, and as a result the injury did not arise in the course of his employment. See Brinkman v. Zuckerman, 192 Mich 624; Irwin v. Williamson Candy Co., 268 Mich 100; Jeffries v. Jodawelky, 304 Mich 421; Conklin v. Industrial Transport, Inc., 312 Mich 250.

In Murphy v. Kuhartz, 244 Mich 54, the employer owned trucks and was engaged in the business of carting furniture to various parts of Detroit. An employee had completed a delivery about 4 miles from the warehouse to which it was his duty to return and report the delivery before going to the garage. "Without returning to the warehouse by the most direct route south and west of Woodward avenue, he crossed to the east side of Woodward and went a considerable distance in an opposite direction to have dinner at his home. Later, on his return to work, an accident occurred at an intersection after the driver had passed the garage on the east side of Woodward on a direct route between the garage and the warehouse, the shortest route to be traveled by the employee from the garage to the warehouse, where he was to report. The Court held that his service to his employer had been resumed, and that he was in the course of his employment. The Court said:

“When he reached this route at a point less distant than the last place of delivery, he had completed the trip which he had taken on his independent business and had re-entered the employment of his master. He was then engaged in no business of his own but was exclusively in the service of his master.”

Emphasis must be placed on the last sentence of the above quotation. See Irwin v. Williamson Candy Co., supra, where the Court so holds, and where the opinion in Murphy v. Kuhartz is explained.

Appellant relies on Haggar v. Tanis, 320 Mich 295. In that case the employee’s sole duties for his employer were to care for furnaces in 3 buildings on the east side of Burdick street in Kalamazoo. He had no duties to perform for his employer elsewhere. He was injured while crossing Burdick street from west to east on his return to his work, from lunch at a restaurant. In the instant case, the decedent’s duties for his employer were co-extensive with the entire county, including the city of Marshall. He had the right to be on Prospect street where he was at the time of the accident. When he was performing a mission for his employer at that time and place, he was in the course of his employment for his employer. That circumstance distinguishes it from the Haggar Case, supra. Furthermore, in the case at bar the decedent’s duties, within the ambit of his employment, required him to be on the streets of Marshall and the highways of Calhoun county while driving his automobile. The employee in the Ilaggar Case had no duty to perform for his employer on Burdick street, and there was no causal relation between his presence there and his duties as a janitor in the buildings.

In Wilhelm v. Angell, Wilhelm & Shreve, 252 Mich 648, plaintiff’s decedent was supervisor for a construction firm, whose duties included travel on the highway. While so doing, he met with a fatal accident. In reviewing the commission’s denial of compensation, the Court said:

“If, in the discharge of his duties, the employee is required to travel upon the highway or to use other means of transportation, and while so doing, in the performance of a service to his employer, he suffers an accidental injury caused by his so traveling, .he is entitled to compensation.”

In- the case at bar there was testimony to support the commission’s finding that the decedent was performing a mission for his employer, in the course of his employment, when injured. The manager of the defendant company testified :

“Q. If he was delivering a buttonholer to a customer in Marshall, also calling on that customer to give some instructions about the buttonholer, or the machine, that would be a part of his job?

“A. It would.”

“The principal issue in this case is' whether plaintiff’s injury arose out of -and in the course of his employment. We have repeatedly held that the question of whether an injury can be said to have arisen out of and in the course of the employment depends upon the particular facts and circumstances of each case. Under the statute (CL 1948, § 413.12 [Stat Ann 1949 Cum Supp § 17.186]), .findings Of fact by the workmen’s compensation commission are, in the absence of fraud, conclusive, if supported by competent evidence.” Tegels v. Kaiser-Frazer Corporation, 329 Mich 84.

A misunderstanding sometimes arises due to the failure to distinguish between cases where the employee had deviated from a required most direct route and was injured before he had returned to such a place, and cases like the one at bar where the employee was not limited by his employment to-the shortest or most direct route. In Murphy v. Flint Board of Education, 314 Mich 226, sometimes cited in support of appellant’s contention that the injury of this decedent did not arise in the course of.his employment, the Court discussed at length many decisions of this Court, in deciding whether the injury in that case arose both out of and in the course of his employment. In passing on the question whether the injury arose in the course of the plaintiff’s employment we held (syllabus) :

“An injury is received ‘in the course of’ employment, as that term is used in the workmen’s compensation act, when it comes while the workman is doing the duty which he is employed to perform (CL 1929,- § 8417, as amended by PA 1943, No 245 ).”

Contrary to what has been said on behalf of the appellant, the decedent’s duties to his employer were not circumscribed within the hours from 8:30 a.m. to 5:30 p.m. Where and when he went, in the performance of his duties, within the city of Marshall or in Calhoun county, was left to his discretion. His duty did not require him to take the most direct route from his business in Battle Creek to the home of his customer in Marshall.

It should be emphasized that plantiff’s decedent was solely on the exclusive business of his employer and not engaged in any business of his own at the time of his injury,—the yardstick required by Murphy v. Kuhartz and Irwin v. Williamson Candy Co., supra. Nor should we be understood as opening the door to an award of compensation regardless of the distance away from the place of employment when injured. “Distance” is not the yardstick controlling the case at bar. In this case, the decedent at the time of his injury was within the ambit of his duties to Ms employer wliile on any street or highway in Calhoun county; when injured he was solely on one mission and that was for his employer; he had not deviated from any fixed and regular route for his employer, because he had none; he was within the ambit of his employment, en route solely to perform a mission for his employer, on a street where he had a right to be for that purpose, when injured.

Under the circumstances of this case, the finding of the commission that the injury to plaintiff’s decedent resulting in his death arose in the course of his employment is supported by competent evidence.

A second question urged by appellant for setting aside the award is ■ that the claimant was not the lawful widow of the decedent—that a claimed common-law marriage had not been established. The commission found to the contrary. The claimant and the decedent had entered into a ceremonial marriage February 8,1935. Shortly afterward the' question arose whether the decedent’s former wife had obtained a divorce. On advice of an attorney, they lived apart for a short time until assured that the decedent’s former wife’s interlocutory decree of divorce had become final. Thereafter they cohabited together and held themselves out to be husband and wife, from 1935 until his death in 1949. While there were several short interruptions from living together, due to his business as a salesman, while they moved about from place to place and lived in various places, and also due in part to his drinking habits and becoming intoxicated, they lived and cohabited together without any interruption from early in 1942 until his death in 1949. There was competent testimony to support the finding of the commission that they were husband and wife at the time of his death.

“ ‘Where parties to an agreement and relationship which, but for the existence of an impediment, would have constituted a valid marriage continue in the relationship in good faith, upon the removal of the impediment the law will establish between them a valid common-law marriage.’ 38 C J, p 1320.” Ryan v. Randall, 252 Mich 501.

See, also, In re Fitzgibbons’ Estate, 162 Mich 416 (139 Am St Rep 570); People v. Lewis, 221 Mich 164; Hess v. Pettigrew, 261 Mich 618; Grammas v. Kettle, 306 Mich 308; Jones v. General Motors Corporation, 310 Mich 605; Stratos v. Stratos, 317 Mich 113.

The award should be affirmed.

Adams and Bushnell, JJ., concurred with Boyles, J.

* CL 1948, § 412.6 (Stat Ann 1950 Rev § 17.156).