Day v. Gold Star Dairy

This is an appeal from an order of the department of labor and industry, awarding compensation to plaintiff for injuries received in an automobile collision.

On February 4, 1942, plaintiff was in the employ of the Gold Star Dairy. On the day in question, he left Port Huron for Kingston for the purpose of buying butter and eggs. On his return trip he ascended a hill or long grade, traveling at a rate of 47 1/2 miles per hour. The highway was wet and icy. He had been following a cattle truck and near the top of the hill he turned to the left side of the highway in an attempt to pass the truck. At this point he collided with an automobile coming from the opposite direction. As a result of the collision, plaintiff was severely injured. Subsequently, plaintiff was arrested, tried and convicted of reckless driving. The injuries which he received when so driving now form the basis of his claim for compensation.

In the opinion of the department of labor and industry awarding compensation, it is said:

"It is our opinion that the plaintiff's conduct was not such as would have been held to be ``wilful and wanton misconduct' in a proceeding arising under the ``guest act.' and if we are right in this opinion, his conduct should not be considered ``intentional and wilful misconduct' in a proceeding arising under the compensation act. We find that the plaintiff suffered an accidental injury on February 4, 1942, arising out of and in the course of his employment by the defendant; that he was not guilty of ``intentional and wilful misconduct' within the meaning of that term as used in 2 Comp. Laws 1929, § 8418 (Stat. Ann. § 17.152)."

Defendants appeal and urge that because plaintiff was guilty of violating 1 Comp. Laws 1929, § 4696 (Stat. Ann. § 9.1564), pertaining to reckless driving, and 1 Comp. Laws 1929, § 4707, as amended by Act No. 318, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 4707, Stat. Ann. 1943 Cum. Supp. § 9.1575), pertaining to the passing of another vehicle when approaching the crest of a grade where the driver's view is obstructed, he is guilty of intentional and wilful misconduct.

Section 8418, 2 Comp. Laws 1929 (Stat. Ann. § 17.152), provides:

"If the employee is injured by reason of his intentional and wilful misconduct, he shall not receive compensation under the provisions of this act."

Defendants rely upon Fortin v. Beaver Coal Co., 217 Mich. 508 (23 A.L.R. 1153). In this case a statute forbade an employee of a mining company from passing across the shaft bottom in any other manner or in any other way than the traveling way provided. Fortin attempted to jump across the sump, in violation of the law, and was struck by a piece of coal falling down the shaft and instantly killed. We there said:

"The authorities seem to be agreed that mere negligence, however great, is not wilful misconduct. Gignac v. StudebakerCorp., 186 Mich. 574. If, however, the conduct occasioning the injury is of a quasi-criminal nature, involving the intentional doing of something with knowledge that it is dangerous and with a wanton disregard of consequences, then it is intentional and wilful misconduct. * * *

"The law enacted for safeguarding the lives of miners against taking hazardous risks of life and limb must be obeyed, and it would be anomalous, to say the least, to permit one statute to be invoked and award compensation thereunder for death occasioned in violating another statute prohibiting the act and making it a misdemeanor. * * *

"He intentionally made an effort to jump across the sump and this was wilful misconduct on his part.

"Such reckless disregard of the statute and invitation of the very consequences the statute was enacted to avoid being a voluntary act on the part of the deceased, involving plan and effort and calculation, and not being in furtherance of any of his duties nor under the direction of his superior, constituted intentional and wilful misconduct on his part and bars compensation to his dependents."

In Waldbauer v. Michigan Bean Co., 278 Mich. 249, plaintiff's decedent entered a bin that had been filled with grain. The bin and contents had been fumigated with cyanide. At the time he entered the bin, he knew the lethal gas was operative. In vacating an award, we said, p. 254:

"Entering the bin while the gas was operative as a death-dealing agency was an act of volition on the part of the deceased, contrary to the course of his employment, warned against, and prohibited by every sense of self-preservation. Such an entry involved more than mere negligence; it was intentional and wilful and in reckless disregard of consequences."

In the Fortin Case, supra, the deceased employee knew or was presumed to know that he was violating a law at the time of the doing of the act. He also knew that there was a potential danger to himself in so, violating the law. There was an intentional doing of something with a wanton disregard of consequences. In theWaldbauer Case, supra, we had a similar situation. The deceased had been instructed not to enter the bin within 72 hours after the grain had been treated, yet on the day following fumigation, he entered the bin. He knew of the danger to himself in so entering the bin. "Such an entry involved more than mere negligence; it was intentional and wilful and in reckless disregard of consequences." The Waldbauer Case is to be distinguished from Detwiler v. Consumers Power Co., 252 Mich. 79, where the court said:

"A rule, to be effective as such, must be prescribed by a power having authority to make rules and it must be enforced with diligence.

"If it be conceded, for sake of argument, that the instruction or caution here was duly authorized, as contended by the employer, still it appears that it was not enforced, obedience was not required, and it is unavailing in respect of wilful misconduct."

In the case at bar, plaintiff knew or should have known that he was violating the law in driving in the manner in which he did upon the occasion involved here. He also knew of the potential danger to himself and the driving public in so doing. His actions were intentional and in reckless disregard of consequences. In none of these cases was the act in furtherance of any of the employee's duties or under the direction of the employer.

In awarding compensation in the case at bar, the department of labor and industry applied the meaning which the court has given to the phrase "wilful and wanton misconduct" as used in the guest passenger statute (1 Comp. Laws 1929, § 4648 [Stat. Ann. § 9.1446]) to the phrase "intentional and wilful misconduct" as used in the compensation act. In our opinion the test to be applied to the phrase used in the compensation act has no relationship to gross negligence or wilful and wanton misconduct. The compensation act does not speak in terms of negligence or degrees of negligence. It speaks in terms of intentional and wilful misconduct. In the case at bar, the conduct of plaintiff was intentional and in disregard of consequences.

The department of labor and industry was in error in awarding compensation. The award should be vacated, with costs to defendants.

BOYLES, C.J., concurred with SHARPE, J.