Howard v. City of Detroit

O’Hara, J.

On our leave granted, plaintiff appealed a denial of benefits under the workmen’s compensation act.¹ The two-to-one divided opinion held his accidental injury did not arise out of and in the course of his employment.

The majority view is succinctly stated as follows:

“The Supreme Court has consistently held that, as a general rule, an injury to an employee while merely on Ms way to or from work, without any causal connection between his injury and his work, and without any duty to perform at that time for the employer, does not arise out of and in the course of the employment.”

Contra, the dissenting opinion, while recognizing the above-quoted general rule, points to the many exceptions thereto which have been recognized,² and applies the test of exceptionality to this case and its particular facts. We quote:

“I agree with my Brother’s statement that the Supreme Court has consistently held that as a general rule an injury to an employee while merely on his way to and from work without any causal connection between his injury and his work and without any duty to perform at that time for the employer the injury does not arise out of and in the course of the employment. The Supreme Court, however, recognizes many exceptions to this general rule.”

Our scope of review is restricted. The findings of fact of the workmen’s compensation appeal board are binding upon us absent fraud.³

We are not here, however, concerned with evidentiary facts, their weight or their credibility. We are concerned with the ultimate conclusion. This finding is, in reality, a legal conclusion based upon the record by application thereto of legal principles established by precedent opinions of this Court. This distinction is noted and recognized in Curtis Company v. Commissioner of Internal Revenue (CA 3), 232 F2d 167, 170:

“There is no dispute as to the evidentiary facts. The only question is whether on these facts the conclusion is supportable.”

Again in Lehmann v. Acheson, 206 F2d 592, 594, the third circuit court of appeals in reviewing the district court’s judgment, observed:

“The district court found as a fact that expatriation had taken place. With respect to that finding it must immediately be noted that it was in the nature of an ultimate finding of fact and on that score it is well settled that such a finding is but a legal inference from other facts and as such is subject to review free of the restraining impact of the so-called 'clearly erroneous’ rule applicable to ordinary findings of fact by the trial court.” (Emphasis supplied.)

The same principle is applicable to our review of the ultimate finding or conclusion, by either name, of the workmen’s compensation appeal board.

Defendant, in its brief, properly and helpfully accepts plaintiff’s statement of facts with “minor exceptions” which we have noted. Thus we need not discuss variations in specifics and we may proceed to the factual background necessary to an understanding of our disposition.

Plaintiff was a bus driver employed by the defendant in its municipally operated public transportation system. He did not drive the same route or “run” every day. On some days he drove what is referred to in the record as a “straight run.” On other days he was assigned, at the option of defendant, for more efficient operation to a “swing run.” When assigned to a “straight run” he drove continnonsly from the beginning to the end of his work day. However, when driving a “swing run” he would drive for a period of several hours, and he was then subject to a nondriving interval called “spread time” or “swing-time.” This “spread time” varied from 23 minutes to more than 5 hours.

On the day involved, plaintiff drove his bus from 7:05 a.m. to 8:45 a.m. He was to resume driving at 1:28 p.m. and was scheduled to drive until 7:54 p.m. During the nondriving interval hereinbefore specified, plaintiff left the terminal on personal business. He completed it and proceeded to his home where he ate his lunch. The record establishes that on the employer’s premises there was an automatic vending machine containing soup, coffee, milk, and soft drinks, and that there was a restaurant in the corner of the terminal building. After his lunch he left and started back to the terminal. Bn route, to resume driving at about 1:18 p.m., he was involved in an automobile accident and injured.

It is the difference between plaintiff’s conduct pattern as affected by his work schedule on “regular run days” and “swing run days” that gives rise to this appeal. The contrasting view of the appeal board members is best shown by their respective opinions. Concerning this circumstance, the minority opinion queries first and then answers:

“Our task here is to determine whether the peculiar nature of the ‘swing run’ to which plaintiff was assigned is a special kind of a contract of hire which would give this employee the protection of the compensation act while he complies with the requirements of his particular employment. I am persuaded that plaintiff’s claim comes within the exception to the general rule.

“Plaintiff had no regular schedule of hours. He ■was assigned from day to day to the numerous swing runs necessary in the operation of defendant’s business. On the day of injury, plaintiff’s assignment required that he drive a bus from 7:05 a.m. to 8:45 a.m. and then again from 1:25 p.m. to 7:54 p.m. He was injured at 1:18 p.m. while proceeding to the 1:28 [sic] p.m. assignment. It is apparent that the injury occurred within a reasonable time before his second stint of working hours and while he was going to his assigned tasks. On the Van Dyke run where plaintiff was assigned at the time of his injury, there were 10 drivers that worked straight through from the time they arrived at work until their day’s duties were completed. There were 14 drivers who worked split shifts. The time lapse between the actual driving hours varied depending upon the particular assignment. Defendant’s exhibit No. 1 discloses time variations ranging from 23 minutes to more than 5 hours. Those working during a period exceeding 11 hours each day received overtime even though they may have actually worked less than 8 hours. In addition, each operator was allowed 30 minutes pay each day of the period when he was to check out his day’s receipts and transfers. He also received 8 minutes of travel time which represented the period from the time he left his bus until he reached defendant’s terminal. * * *

“Is the person who is off only 23 minutes able to utilize this period of time as he personally desires or is his use of this time restricted by the very nature of his work assignment? Is there a legal distinction to be made between the person who is off duty only a few minutes and a person who is off duty for an hour or more? Because of the nature of the employment, each are subjected to hazards which they would not have encountered in the ordinary going to and from work. The person who has only 23 minutes may not be able to leave the employer’s property because of his employment assignment. On the other hand, the person who has enough time between his actual working duties to leave the immediate premises is then subjected to street hazards to a degree and in a manner far different than that found in employment in general.”

We are not unmindful that no incident of plaintiff’s employment required him in an absolute sense to leave the terminal during the 5-hour interval. If he did choose to leave he was certainly not required to travel by automobile. Why not then, asks defendant, under Baas v. Society for Christian Instruction, 371 Mich 622⁵ (the concurrence of O’Hara and Smith, JJ.) was not the automobile “a stranger to the issues'?”

In Baas, plaintiff there, as the “regular run” drivers here, had no extended break in her hours of duty. She taught her normal classroom day, with its normal lunch time period. Defendant concedes, the “dual purpose” principle contended for in the dissent in Baas is not involved here. Plaintiff was about his own private affairs. The distinguishing point is plaintiff would not have been required by his work schedule to accept an irregular pattern of working time had it not been that the nature of defendant’s business and defendant’s contract of employment required him to do so. It is not to the point that plaintiff was injured in an automobile collision. It is to the point that a condition of his employment required plaintiff to begin his work day at 7 a.m., work till 8:45 a.m., interrupt his work for 5 hours and resume work again at 1:28 p.m. This fact of his employment contract subjected plaintiff to a situation entirely different in nature from that to which the “regalar run” drivers on the same run (Van Dyke) were subjected. For this reason we believe the majority opinion erred in the ultimate conclusion that plaintiff was “merely on his way to [or from] work.” This is precisely what plaintiff was not doing. As we noted in a somewhat, though not totally, similar case:⁶

“When Bisdom left at 4:30 p.m. his day’s work was not finished. He was not going home for the night, but only to eat his dinner and * * * while on his way home, met with an automobile accident # * * . He was acting within the course of his employment.”

In the case cited, plaintiff was en route to his dinner, rather than returning thereafter, but the special circumstance was created by a specific requirement of his employment on that day. It resulted from a direct order from his employer and had no application to any other day. The essential point abides. The circumstance was a deviation from his regular normal working schedule. It was for his employer’s benefit and was an incident of his contract of employment. Thus it was that a circumstance of his employment placed him where he was at the time of his accidental injury. So too, it was a circumstance of his employment that placed plaintiff in this case where he was when he was accidentally injured.

In this case, also, plaintiff had not finished his day’s work. We agree with the dissenting opinion that the facts presented in Bisclom are sufficiently analogous to warrant its application here.

We conclude that the majority of the appeal board was in error in its ultimate conclusion that amounted to an error in law.

The order of the appeal board denying benefits is vacated. The case is remanded with instructions to enter an order awarding plaintiff the benefits to which he is entitled under the proofs of dependency as found by the board. If further hearing to determine this fact is required, such further hearing is authorized. Plaintiff may tax costs.

Souris, Smith, and Adams, JJ., concurred with O’Hara, J.

1 PA 1912 (1st Ex Sess), No 10, as amended as of October 31, 1960 (CD 1948 and CLS 1961, § 411.1 et seq. [Stat Ann 1960 Rev § 17.141 et seq.1).

2 Kunze v. Detroit Shade Tree Co., 192 Mich 435 (LRA 1917A, 252); Haller v. City of Lansing, 195 Mich 753 (LRA 1918A, 218); Punches v. American Box Board Co., 216 Mich 342; Clifton v. Kroger Grocery & Baking Co., 217 Mich 462; Brink v. J. W. Wells Lumber Co., 229 Mich 35; Stockley v. School District No. 1 of Portage Township, 231 Mich 523 (24 NCCA 493); Favorite v. Kalamazoo State Hospital, 238 Mich 566; Bisdom v. Kerbrat, 251 Mich 316; Merriman v. Manning, Maxwell & Moore, 251 Mich 318; Wilhelm v. Angell, Wilhelm & Shreve, 252 Mich 648; Spero v. Heagany & Draper Co., 256 Mich 403; Wearner v. West Michigan Conference of Seventh Day Adventists, 260 Mich 540; Konopka v. Jackson County Road Commission, 270 Mich 174 (97 ALR 552); Mann v. Board of Education of City of Detroit, 266 Mich 271; Babl v. Pere Marquette R. Co., 272 Mich 184; Appleford v. Kimmel, 297 Mich 8; Weaver v. General Motors Corporation, 330 Mich 404; Ditch v. General Motors Corporation, 345 Mich 178; Freiborg v. Chrysler Corporation, 350 Mich 104; and Dyer v. Sears, Roebuck & Co., 350 Mich 92. (Cases compiled in the dissenting appeal board opinion.)

3 CL 1948, § 413.12 (Stat Ann 1960 Eev § 17.186),

5 This holding was not dispositive in Haas but defendant urges-that the reasoning of the concurrence is applicable. The dissent was. based on the “dual purpose” doetrine.

6 Bisdom v. Kerbrat, 251 Mich 316, 317.