Brooks v. Fields

135 N.W.2d 346, 375 Mich. 667, 1965 Mich. LEXIS 299

• Court: Michigan Supreme Court
• Decided: June 7, 1965
• Docket: Calendar 2, 3, Docket 50,552, 50,553
• Status: Published

Opinions

Souris, J.

Defendants asked the trial court to grant summary judgment in their favor, alleging as the sole basis for such grant the provisions of section 1 of part 2 and section 15 of part 3 of the workmen’s compensation act, CDS 1961, §§ 412.1, 413.15 (Stat Ann 1960 Rev §§17.151, 17.189). Section 1 pertinently provides:

“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.”

Section 15 pertinently provides:

“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 élection of remedies”.

The trial judge in his decision granting summary judgment stated that since plaintiff Dolores Brooks had alleged in her complaint all of the facts necessary to bring into play the presumption of section 1 she could not on trial be permitted to rebut that presumption, and if the presumption were unre-butted lier suit could not succeed. We need not consider this reasoning process in its entirety simply because the trial judge’s basic premise was wrong.

The fact is that the complaint of Dolores Brooks did not allege all facts necessary to give rise to .section l’s presumption. For example, nothing appears in the complaint, or in any of the nonconclusionary pleadings before the trial court, to indicate when or whether Mrs. Brooks’ working hours had begun or ended. Without such information, it is impossible to say that the presumption has arisen, since it arises only within a “reasonable time” before or after working hours. Thus the judgment of the trial judge, based as it was upon a major misconception of the record, cannot be permitted to stand.

Furthermore, even if Mrs. Brooks were in the course of her employment by virtue of section l’s presumption, she would not be barred from suit by section 15 unless the defendants also were in the course of their employment by the same employer. Aside from pleading such conclusion as an affirmative defense, denied by plaintiffs, there was nothing before the trial court, not even an affidavit, from which such a finding could be made even if it were then appropriately the function of the judge to make such findings. Under such circumstances, summary judgment as provided for by GrCR 1963, 117, should not have been entered. See Durant v. Stahlin (Appeal in re Van Dusen, Elliott, Romney), 375 Mich 628, 640, also decided this day.

Reversed and remanded. Costs to plaintiffs.

T. M. Kavanagh, C. J., and Smith and Adams, JJ., concurred with Souris, J.