Le Vasseur v. Allen Electric Co.

61 N.W.2d 93, 338 Mich. 121

• Court: Michigan Supreme Court
• Decided: November 27, 1953
• Docket: Docket 27, Calendar 45,637
• Status: Published

Opinions

Butzel, J.

George Le Vasseur, plaintiff, was employed by Allen Electric Company of Bay City, Michigan, defendant, at its shop as a journeyman electrician. He also was sent out to do special jobs for customers. When acting in the latter capacity he was paid from the time he left the shop until his return and he received additional reimbursement at the rate of 8 cents per mile when he used his own car.

Because of a shortage of materials, defendant requested plaintiff to remain home until further notice. During the noon hour on September 12, 1950, defendant called plaintiff at Ms home and requested him to go to the Central High School in Bay City to hook up a cable for the electric ranges in the home economics department. Plaintiff’s regular afternoon hours while at the shop were from 12:30 p.m. to 4:30 p.m. He claims that the telephone call reached him at 12:35 p.m., although defendant contends that it was 12:15 p.m., and that from 12:00 noon to 12:30 p.m. was the half-hour lunch period. In any event, plaintiff, after placing his tools in Ms ■car, set out for the school traveling along the most direct route. While driving along the road a limb fell from a tree onto the car, penetrated the canvas top and struck plaintiff. It knocked him unconscious so that he lost control of the car, which crashed into a tree. Plaintiff suffered severe injuries and incurred large hills for hospital care and doctors’ and nurses’ services. He was able to return to work in about 3 months. The workmen’s compensation commission affirmed an award of compensation made by the deputy commissioner against defendant and State Accident Fund, codefendant, who have appealed in the nature of certiorari. They contend that plaintiff’s injuries did not arise out of and in the course of his employment as required by statute, CL 1948, §412.1 (Stat Ann 1950 Rev §17.151). They base their claim partly on the fact that plaintiff had not yet arrived at the high school, and that the injuries sustained going to and from work are not compensable. Testimony shows that plaintiff would normally be entitled to pay from the time he left home until his return when sent on a special job. Also, this is not the ordinary case of an employee going to and from his work but one where the employee was engaged in a special mission in the interest of and at the direction of his employer. See Stockley v. School District No. 1 of Portage Township, 231 Mich 523 (24 NCCA 170).

Defendants insist that plaintiff’s injuries did not arise out of his employment. They cite Nelson v. Country Club of Detroit, 329 Mich 479; Klawinski v. Lake Shore & Michigan Southern R. Co., 185 Mich 643 (LRA 1916A, 342); and Thier v. Widdifield, 210 Mich 355, all lightning cases where the injury occurred through an “act of God.” In the instant case there was no storai or unusual weather conditions at all. Without objection, plaintiff was permitted to-testify that he did not see the limb fall, but that he¡ had been told that it was “a little decayed,” and that! it was 6 to 8 inches thick. We believe we can safely assume that the information was correct, for limbs of trees do not fall without some intervening force unless they have rotted. Such a limb should have been removed for it constituted as much of a menace on the highway as any obstruction the car might have run into. Defendants further rely upon Levchuk v. Krug Cement Products Company, 246 Mich 589, wherein the employee was struck by flying glass when a pheasant flew into and shattered the windshield of a truck in which he was riding in the course of his employment. Our decision there that the injury did not arise out of the employment was by an equally divided court, so that case is not binding upon us as a precedent. In the later case of Morse v. Port Huron & Detroit R. Co., 251 Mich 309, we said:

“Defendant contends that the accident did not arise out of Morse’s employment because the street hazard was not peculiar to his work but was common to the neighborhood and a risk to which all persons in the street were subject. The nebulosity originally enveloping the rule invoked has been considerably dissipated by later cases. We need not spend the time to trace the change. It is sufficient to say that it is the rule in this State that if the employment requires an employee to go upon the public street, the ordinary hazards of the street are incurred in the course of the employment.”

In Widman v. Murray Corporation of America, 245 Mich 332, an employee was required to travel by train in the course of his employment, and while so traveling was struck in the eye by a cinder. In affirming an award of compensation we quoted with approval from Harry Cook’s Case, 243 Mass 572 (137 NE 733, 29 ALR 114), as follows:

“When these hazards thus become connected with, and incidental to the employment, and are the direct cause of the accident, such accidents arise out of, as well as in the course of the employment. And the fact, that others engaged in their own affairs are more or less exposed to the same street risks, does not preclude recovery by an employee who is necessarily exposed to them in performing the duties of his employment contract.”

We believe that the rule applicable to this class of cases is well stated in Katz v. A. Kadans & Company, 232 NY 420 (134 NE 330, 23 ALR 401), wherein the court of appeals said:

“If the work itself involves exposure to perils of the street, strange, unanticipated, and infrequent though they may be, the employee passes along the streets when on his master’s occasions under the protection of the statute.”

The court further said that:

“Particularly on the crowded streets of a great city, not only do vehicles collide, pavements become out of repair, and crowds jostle, but mad or biting dogs may run wild, gunmen may discharge their weapons, police officers may shoot at fugitives fleeing from justice, or other things may happen from which accidental injuries result to people on the streets, * * * and do not commonly happen indoors.”

See, also, our own decisions in Kunze v. Detroit Shade Tree Company, 192 Mich 435 (LRA 1917A, 252), where the employee was injured while boarding a streetcar while traveling from job to job in the course of his employment, and Arnested v. McNicholas, 223 Mich 488, where the employee was shot by an unknown deer hunter while searching for a route over which to construct a roadway through the woods. In both these cases we held that the employees’ injuries arose out of their employment. A number of cases from other jurisdictions holding that street injuries are compensable as arising out of the employment when it is the employment itself that places the employee on the street may be found in 80 ALR 126 and many supplemental decisions listed in the ALR blue books.

Tbe award of compensation is affirmed, with costs to plaintiff.

Adams, Carr, and Bushnell, JJ., concurred with Butzel, J.