Turner v. Consumers Power Co. ( 1965 )

Souris, J.

Plaintiff, widow of a deceased employee of defendant, Consumers Power Company, takes this appeal by leave granted from an order of the workmen’s compensation appeal board affirming an order of the hearing referee denying to plaintiff dependency compensation benefits.

Decedent had been employed by defendant for 35 years and at the time of his death held the salaried position of general gas meter supervisor. As the result of an illness in 1956 decedent was unable to work for several months. Even after he resumed work, his physical condition was such that he went from his office to his home to rest at lunch time for a period varying from one to three hours, after which he would return to the office. Plaintiff offered evidence that defendant acquiesced in this practice and continued decedent on full salary as it had done throughout his illness.

At about noon on October 19, 1961, according to plaintiff, decedent returned home from his office and rested and also worked on some papers he had brought from the office. He left home about 2 p. m. to attend a meeting at his office and while driving there was struck by a train and killed.

Plaintiff’s briefs to the appeal board and to this Court argued that because decedent had taken work home on the day of his death, which plaintiff claimed was his common practice known and acquiesced in by his employer, his death while returning to the office arose “out of and in the course of his employment”¹ and so was a compensable event. Plaintiff relied upon cases like Wheeler v. Department of Conservation (1957), 350 Mich 590, which held an injury might be considered as arising out of and in the course of employment when it was incurred in the performance of “a service which was incident to and in furtherance of the general task to which [the employee] had been assigned” even though performance of the service also benefited the employee. 350 Mich 590, 594. In Wheeler and like cases the service had been expressly or impliedly authorized by the employer. In this case of Turner, however, the appeal board found as a fact that there was no necessity for decedent to do any work at home, and further that defendant employer neither expected nor authorized him to do so. This finding has record support and, that being so, we are precluded from substituting our judgment of the facts for that of the appeal board. Coates v. Continental Motors Corporation (1964), 373 Mich 461.

In the brief submitted to this Court by the amicus curiae, the argument is made that decedent’s fatal injury arose “out of and in the course of his employment” because it occurred while decedent was returning to his office from his home where he went regularly each noon to rest pursuant to an arrangement between decedent and his employer. Amicus argues that the employer, by permitting decedent to follow this regimen, was enabled to continue to utilize the services of a valuable employee whose services otherwise would have been lost to it.

The theory advanced by amicus, and adopted during oral argument to this Court by plaintiff-appellant, comes too late in the adjudicatory process. Had it been advanced during proceedings before the department, it cannot be doubted seriously that at least defendant, and probably plaintiff as well, would have offered additional evidence relating to the alleged arrangement between decedent and his employer, and particularly relating to the employer’s purpose in entering into such an arrangement. Instead, however, the case was tried to the referee and appealed to the appeal board and to this Court on the theory that plaintiff was entitled to benefits because decedent had been performing work for his employer at home from which he was returning to his office when fatally injured. Neither the referee nor the appeal board considered the theory belatedly advanced by amicus just two weeks before oral argument to this Court. On this record, neither may we.

Affirmed. Costs may be taxed.

T. M. Kavanagh, C. J., and Dethmers, Kelly, Smith, O’Hara, and Adams, JJ., concurred with Souris, J.

1 CLS 1961, § 412.1 (Stat Ann 1960 Rev § 17.151).