Fidelity & Casualty Co. of New York v. DeShone , 384 Mich. 686 ( 1971 )

384 Mich. 686 (1971) 187 N.W.2d 215

FIDELITY & CASUALTY COMPANY OF NEW YORK
v.
DeSHONE

No. 25 January Term 1971, Docket No. 52,506.

Supreme Court of Michigan.

Decided June 1, 1971.

Carras & Carras (Walter J. Barkey, of counsel), for plaintiffs.

Heilman, Purcell, Tunison & Cline, for defendant.

WILLIAMS, J.

On October 27, 1960, at approximately 8 a.m., plaintiff Eugene Wend reported for work at the IGA store of St. Charles. The store, which is owned and operated by Delmus DeShone, the father and employer of defendant Robert DeShone, runs east and west along Clinton Street. Between the Clinton Street side of the building and Clinton Street there is a space of approximately 21 feet. Five feet of this space is sidewalk, running beside the building, and 16 feet is parking space which is part of the public road right-of-way. The 16 feet of parking space was used and maintained by the store owner for customer and employee parking.

Shortly after plaintiff Wend's arrival the defendant, Robert DeShone, arrived and parked his Volkswagen automobile in the above described parking space. His purpose in arriving at this time was to open the store for his employer as he normally did and for this purpose he had the keys to the store with him. The Volkswagen was owned by his employer and was used for delivering groceries.

Before opening the store, the defendant borrowed the key of another Volkswagen from John Gutry, a fellow employee who had also arrived on the scene, to find out whether it would fit the Volkswagen the defendant was driving. The plaintiff had at this time moved from the door of the building to a point on the sidewalk in front of the Volkswagen driven by defendant.

The defendant put Gutry's key into the ignition of his employer's Volkswagen and turned the key. The Volkswagen lurched ahead, pinning plaintiff Wend against the building and injuring him.

Plaintiff Wend applied for and received an award from the workmen's compensation commission in the amount of $1,739.50 against the Fidelity & Casualty Company of New York, the employer's compensation carrier.

Fidelity & Casualty Company commenced an action against the defendant to recover the amount it had paid Wend. Subsequently, the court permitted Wend to join as a party plaintiff.

There was testimony at the trial that the defendant generally opened the store in the morning for the employees; that he worked at the store five or six days a week and that on the morning of the occurrence in question plaintiff Wend and the defendant went to work approximately 15 to 30 minutes after the plaintiff was injured, the delay being caused solely by the plaintiff's injury.

In the trial the jury returned a verdict for the plaintiffs. The trial judge granted the defendant's motion for judgment notwithstanding the verdict. Plaintiffs appealed and the judgment was affirmed by the Court of Appeals. From the decision of the Court of Appeals, plaintiffs appealed to this Court.

MCLA § 413.15 (Stat Ann 1968 Rev § 17.189) (since repealed by PA 1969, No 317; now PA 1969, No 317, § 827 [MCLA § 418.827; Stat Ann 1971 Cum Supp § 17.237 (827)]) provided as follows:

"Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies, but such injured employee or his dependents or their personal representative may also proceed to enforce the liability of such third party for damages in accordance with the provisions of this section." (Emphasis added.)

If plaintiff Wend was in the "same employ" as the defendant at the time the accident occurred there can be no recovery by either plaintiff Wend or the employer's insurance carrier, Fidelity & Casualty Company of New York.

The plaintiff was found by the workmen's compensation commission to be an employee of Delmus DeShone, defendant's father, and injured during the course of his employment. In the absence of fraud, a finding of fact by the workmen's compensation commission is binding on a party to that proceeding in a later action. Ayers v. Genter (1962), 367 Mich. 675, 678, 679. Consequently, the determination of the workmen's compensation commission in making the award to Wend that he was an employee of Delmus DeShone injured during the course of his employment is binding upon him in this action.

As a result of the workmen's compensation commission's determination of plaintiff Wend's status the only question properly before the trial court was whether the defendant Robert DeShone's act arose out of and in the course of his employment by his father, Delmus DeShone, making him, at the time of the accident, a "natural person in the same employ."

The provision exempting all "natural persons in the same employ" (MCLA § 413.15 [Stat Ann 1968 Rev § 17.189], now PA 1969, No 317, § 827 [MCLA § 418.827; Stat Ann 1971 Cum Supp § 17.237 (827)]) must be construed in light of its purpose. The legislative intent in enacting this 1952 amendment to the workmen's compensation act was "to exempt from liability * * * all natural persons who are carrying on the activities of the employer, regardless of what those activities may be." Pettaway v. McConaghy (1962), 367 Mich. 651, 655.

MCLA § 412.1 (Stat Ann 1968 Rev § 17.151) (since repealed by PA 1969, No 317; now PA 1969, No 317, § 301 [MCLA § 418.301; Stat Ann 1971 Cum Supp § 17.237(301)]) provided that:

"Every employee going to or from his work while on the premises where his work is to be performed, and within a reasonable time before and after his working hours, shall be presumed to be in the course of his employment."

An injury occurring in a parking lot normally used by employees and maintained by the employer although not owned or leased by him is considered to take place on the premises. Lasiewicki v. Tusco Products Company (1963), 372 Mich. 125. The public right-of-way was used and maintained by the parties' employer for customer and employee parking. Therefore, the statutory presumption applies.

In addition, there was testimony that the defendant normally opened the store in the morning and that on the morning of the accident, defendant had been given the keys to the store by the owner at defendant's residence for that purpose. The injury occurred while plaintiff Wend was standing beside the store waiting for the defendant to open it. At the time of the accident, the defendant was embarked on a mission for his employer. In this capacity, his act arose out of and in the course of his employment.

The fact that the defendant's act of trying someone else's keys in his automobile did not fulfill any purpose of his employer does not affect his status. To be in the course of employment, employees are not required to do only those acts that are part of their assigned work. Crilly v. Ballou (1958), 353 Mich. 303, 326 states:

"For the purposes of the compensation act the concept of course of employment is more comprehensive than the assigned work * * *. Course of employment is not scope of employment. The former, as the cases so clearly reveal, is a way of life in a working environment. If the injury results from the work itself, or from the stresses, the tensions, the associations, or the working environments, human as well as material, it is compensable."

We hold that the trial court correctly concluded there was insufficient evidence from which a jury could reasonably find that the act of the defendant which injured the plaintiff did not arise out of and in the course of his employment.

Affirmed.

T.M. KAVANAGH, C.J., and BLACK, ADAMS, T.E. BRENNAN, T.G. KAVANAGH, and SWAINSON, JJ., concurred with WILLIAMS, J.