McNutt v. Overhead Conveyor Co.

Michigan Court of Appeals

McNutt v. Overhead Conveyor Co.

246 N.W.2d 328, 71 Mich. App. 158, 1976 Mich. App. LEXIS 932

CourtMichigan Court of Appeals

DecidedSeptember 7, 1976

DocketDocket No. 25107

StatusPublished

This text of 246 N.W.2d 328 (McNutt v. Overhead Conveyor Co.) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McNutt v. Overhead Conveyor Co., 246 N.W.2d 328, 71 Mich. App. 158, 1976 Mich. App. LEXIS 932 (Mich. Ct. App. 1976).

Pincite

Opinion

D. C. Riley, J.

Plaintiff, injured in a 1970 Christmas Eve automobile accident, urges us to reverse the Workmen’s Compensation Appeal Board’s denial of compensation and to declare that plaintiff’s travel injuries are compensable.

Plaintiff operated cranes for defendant Overhead Conveyor Co. at various job sites throughout Michigan and received a union-negotiated travel allowance based on the distance from Detroit to the job site. In December, 1970 plaintiff worked in Albion and received an eight dollar per day travel allowance over and above his regular wages. Although providing a full day’s wages, defendant released its employees at noon on Christmas Eve. Plaintiff remained on the job site for two hours and drank two alcoholic drinks with co-workers and supervisors.

Although plaintiff lived 80-90 miles to the east, in Southgate, his travels from the job site were multi-directional. He first journeyed east with a co-employee, Ripley, to Jackson, then exited the freeway and headed south to a bar. Plaintiff there consumed several drinks. After imbibing there, McNutt and Ripley headed north towards Pleasant Lake, hoping to locate a former co-employee, Peacock. The men entered another bar and drank for about an hour. Peacock testified that, in his opinion, McNutt "had been drinking quite a bit”. Finally at 5 p.m., plaintiff headed home. Unfortunately, within a mile of the tavern, plaintiff steered his car into the path of another auto and collided. He has not worked since the accident.

Even accepting that plaintiff’s daily travel time [160]*160ordinarily was employment because of an identifiable travel allowance paid and because of the travel necessities required by job site turnover,¹ we cannot agree that these particular travel injuries are compensable. We believe, as did the majority of the board, that plaintiff substantially deviated from his employment by his meanderings in search of holiday cheer.

Under Thomas v Certified Refrigeration, Inc, 392 Mich 623; 221 NW2d 378 (1974), plaintiff is precluded from recovery if his "personal * * * detour is so great that the deviation dwarfs the business portion of the trip”. 392 Mich at 635. In applying the balancing test authorized by Thomas, the strong evidence of plaintiff’s drinking tips the scales against him. An employer need not compensate an employee who, knowing that he faces a lengthy drive home, chooses to pass the afternoon in pursuit of holiday celebrations. Compare Stanton v Lloyd Hammond Produce Farms, 67 Mich App 279; 240 NW2d 773 (1976) ("slight deviation”).

Affirmed. No costs; a public question.

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D. C. Riley, J.

Plaintiff, injured in a 1970 Christmas Eve automobile accident, urges us to reverse the Workmen’s Compensation Appeal Board’s denial of compensation and to declare that plaintiff’s travel injuries are compensable.

Plaintiff operated cranes for defendant Overhead Conveyor Co. at various job sites throughout Michigan and received a union-negotiated travel allowance based on the distance from Detroit to the job site. In December, 1970 plaintiff worked in Albion and received an eight dollar per day travel allowance over and above his regular wages. Although providing a full day’s wages, defendant released its employees at noon on Christmas Eve. Plaintiff remained on the job site for two hours and drank two alcoholic drinks with co-workers and supervisors.

Although plaintiff lived 80-90 miles to the east, in Southgate, his travels from the job site were multi-directional. He first journeyed east with a co-employee, Ripley, to Jackson, then exited the freeway and headed south to a bar. Plaintiff there consumed several drinks. After imbibing there, McNutt and Ripley headed north towards Pleasant Lake, hoping to locate a former co-employee, Peacock. The men entered another bar and drank for about an hour. Peacock testified that, in his opinion, McNutt "had been drinking quite a bit”. Finally at 5 p.m., plaintiff headed home. Unfortunately, within a mile of the tavern, plaintiff steered his car into the path of another auto and collided. He has not worked since the accident.

Even accepting that plaintiff’s daily travel time [160]*160ordinarily was employment because of an identifiable travel allowance paid and because of the travel necessities required by job site turnover,¹ we cannot agree that these particular travel injuries are compensable. We believe, as did the majority of the board, that plaintiff substantially deviated from his employment by his meanderings in search of holiday cheer.

Under Thomas v Certified Refrigeration, Inc, 392 Mich 623; 221 NW2d 378 (1974), plaintiff is precluded from recovery if his "personal * * * detour is so great that the deviation dwarfs the business portion of the trip”. 392 Mich at 635. In applying the balancing test authorized by Thomas, the strong evidence of plaintiff’s drinking tips the scales against him. An employer need not compensate an employee who, knowing that he faces a lengthy drive home, chooses to pass the afternoon in pursuit of holiday celebrations. Compare Stanton v Lloyd Hammond Produce Farms, 67 Mich App 279; 240 NW2d 773 (1976) ("slight deviation”).

Affirmed. No costs; a public question.

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Bluebook (online)

246 N.W.2d 328, 71 Mich. App. 158, 1976 Mich. App. LEXIS 932, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnutt-v-overhead-conveyor-co-michctapp-1976.

Opinion

D. C. Riley, J.

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