Anderson v. Kroger Grocery & Baking Co.

40 N.W.2d 209, 326 Mich. 429, 1949 Mich. LEXIS 313

• Court: Michigan Supreme Court
• Decided: December 8, 1949
• Docket: Docket No. 66, Calendar No. 44,485
• Status: Published

Opinion

Btjtzel, J.

Defendants appeal from an order of the workmen’s compensation commission awarding-to plaintiffs dependency compensation and also medical and funeral expenses. The controlling- question is whether the decedent’s presence on the street at the time of, the .fatal accident arose out of and in the course of jiis employment, as found by the commission. • -

Robert Y. Anderson was the manager of the Krogef Grocery & Baking- Company store in the village of Grant, Michigan, for 11 years up to and until the time when he met with fatal injuries upon being struck by an automobile while he was returning from Johnie’s restaurant, -to'.the Kroger store. Plaintiffs, widow arid minor-' children.of decedent, claim that the injury arosh oi|.t hfyand'iri; the;course of Ms employment. Defendants claim that decedent was injured while on a personal mission not within the ambit of his- employment.

The dutes of decedent varied and the manner in which he performed them was left largely to his discretion. He was often on the street on business errands, including trips to the bank and to the post-office. Among his other outside activities for the store were visits to the creamery to purchase and pick up butter, the occasional delivery of groceries to a few near-by farms and to the restaurant, and the purchase of vegetables and fruits. He was not engaged in these particular activities at the time of the accident.

In the village of Grant, Front street and M-37 run north and south parallel to each other and a block apart, with M-37 on the east. The Kroger store is located on the northwest corner of Front street and Lincoln street. Johnie’s restaurant is on the east side of M-37, about a block and a half from Kroger’s. Across from Johnie’s restaurant is a shortcut through vacant property and a well-worn traveled path, that runs to the store.

Testimony shows that the main business in and about Grant is the raising and selling of fresh vegetables, particularly onions; and further, that about 75 per cent, of the area’s transactions in onions, as well as some of those in other vegetables, were made in Johnie’s restaurant over a cup of coffee.

Decedent opened the Kroger store, in which there was no telephone, at about 8 o’clock each morning and customarily each morning went to Johnie’s restaurant at about 9 o’clock or shortly thereafter to have toast and coffee, his first food of the day. He did not take breakfast at home. He would transact any business that could he done while there, including the occasional purchase of vegetables and the solicitation of grocery orders. John Morrison, proprietor of Johnie’s restaurant, would give him grocery orders on the average of twice weekly. The evidence does not indicate that the company had any objection to his trips to the restaurant. The testimony shows that the company’s district manager would go there with him when he was in Grant.

On the morning in question decedent remained in the restaurant for about 7 or 8 minutes, partook of his usual fare, and received a grocery order from the owner. He was in a hurry to return to the store and was offered a ride back by a friend who had a car parked across M-37. He was run down while crossing the highway. The facts are not clear as to whether he intended to accept the ride or walk across the shortcut.

An injury arises out of and in the course of the employment when it occurs while engaged in the duties of the employment and it has a rational causal connection to the work. See Murphy v. Flint Board of Education, 311 Mich 226, for an extensive collection of authorities and a fuller discussion. The proper test to be applied in this and similar cases is concisely stated by Chief Justice Cardozo in Dependents of Marks v. Gray, 251 NY 90 (167 NE 181), as follows:

“We do not say that service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause. To establish liability the inference must be permissible that the trip would have been made though the private errand had been can-celled. * * * The test in brief is this: If the work of the employee creates the necessity for the travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. * * * If, however, the work has no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon the failure of the private purpose though the business errand was undone, the travel is then personal, and personal the risk.”

The commission found that decedent had a twofold purpose in going to the restaurant, one to have breakfast and the other to do business for his employer, in accordance with the well-established custom acquiesced in by the employer; that the causes were concurrent and so closely related that it would be'impossible to conclude that either one was the primary reason for his absence from the store. As the business aspect was found not to be merely incidental, it follows that the injury arose out of and in the course of the employment, and is compensable. The requisite causal connection was present.

This is a borderline case. Were we the trier of facts, it is possible that we might have inferred that the causes of the trip were not both of major importance and found that it would not have been made in the absence of the personal desire for the morning repast. However, there is some competent evidence to support the finding. The statute (CL 1948, § 413.12 [Stat Ann 1947 Cum Supp § 17.186]) provides in part that:

“The findings of fact made by the compensation commission acting within its powers shall, in the absence of fraud, be conclusive.”

It has been repeatedly held that this Court may not disturb the findings of the department of labor and industry when there is competent evidence to support them. Steede v. Michigan Gas & Electric Co., 303 Mich 147; Baughman v. Vicker’s, Incorporated, 323 Mich 710.

Defendants contend that the finding that the 2 causes of travel were so closely related that it would be impossible to conclude that either one was the primary cause for the trip automatically defeats plaintiffs’ case, and cite Byrne v. Clark Equipment Co., 302 Mich 167, and Putnam v. Beechler, 299 Mich 552, as authority. In the former the claimant failed to sustain the burden of proof when it was impossible for the commission to determine whether the fatal peritonitis resulted from the repair of a hernia or an appendix removal. In the latter the inference that the injury resulted from an existing condition was as strong as the one that it resulted from a fortuitous event. Both these cases dead; with the proximate physical cause, not with whether the employee’s activity at the time of injury was within the ambit of his employment.

Defendants cite Murphy v. Flint Board of Education, supra, Jeffries v. Jodawelky, 304 Mich 421, Conklin v. Industrial Transport, Inc., 312 Mich 250, and Haggar v. Tanis, 320 Mich 295, in support of their claim that the injury was outside the ambit of employment. The facts of those cases distinguish them from the instant one. In the Murphy Case the injury occurred after' the working day, while claimant was on the way home. She was not at the time engaged in any specific mission for her employer. The other 3 cases deal with injuries sustained while on a deviation from the route for the sole purpose of carrying out a personal mission.

We are not entirely in accord with some of the statements contained in the opinion of the commission, which have not been mentioned herein, but these are not pertinent to our determination of the main issue.

The award is affirmed, with costs to plaintiffs.

Sharpe, C. J., and Bushnell, Boyles, Reid, North,, Dethmers, and Carr, JJ., concurred.