Thomas v. Certified Refrigeration, Inc

221 N.W.2d 378, 392 Mich. 623, 1974 Mich. LEXIS 199

• Court: Michigan Supreme Court
• Decided: September 6, 1974
• Docket: 10 June Term 1974, Docket No. 54,600
• Status: Published

Opinions

Williams, J.

The issue in this case is whether an employee, allowed to garage a company vehicle at his home overnight, seriously injured on his way to work during a detour to deliver his daughter to school, suffered an injury that "arose out of’ and "in the course of’ his employment. In deciding this issue the following three questions must be resolved:

1) Is Conklin v Industrial Transport, Inc, 312 Mich 250; 20 NW2d 179 (1945), which held that even a slight deviation to carry out a personal mission would preclude compensation, still good law?

2) Is injury compensable which occurs off the employment premises during an employer approved personal activity, where there is some general employer interest?

3) Is injury compensable which occurs off the employment premises during a personal activity unapproved by the employer but where the activity is incidental to the employment relationship?

We answer the first question in the negative and remand the matter to the Workmen’s Compensation Appeal Board for further proceedings not inconsistent with our observations on the last questions so that those two matters may be more fairly considered by the board and parties now that Conklin no longer controls.

I —FACTS

On May 1, 1968 at approximately 7 a.m., Forrest Thomas, plaintiff¹ while driving a Chevrolet van, collided with another vehicle on northbound Southfield Freeway near Joy Road and, as a result, was permanently and totally disabled until his death on August 6, 1970. The truck Thomas was driving was furnished and owned by the defendant-appellee, Certified Refrigeration, Inc., who had employed Thomas as a refrigerator serviceman since 1966.

Testimony was received that the van was designed to provide maximum payload for wheelbase allowed and as a result presented special safety hazards in that the driver had no protection in front-end collisions and there was no partition between the driver and the back of the van. Testimony also was given that Thomas owned a Ford which was structurally safer than the van and which he would have used to drive to work had he not driven the truck home each night.

Thomas would drive the truck to work in Detroit from his home in Dearborn Heights and was required to report by 8:30 a.m. each working day. He would then proceed to make his daily service calls and drive home at the end of the day without first reporting back to his employer’s premises. All drivers were permitted and, in fact, took home the trucks they drove although this action was not required by the employer. Testimony was received that by allowing the trucks to remain at the employees’ homes overnight, the employer saved costs of enlarging the parking facilities and installing security devices. The trucks carried the company name and slogan, contained equipment necessary to repair refrigerators and were equipped with two-way radios so that the serviceman could be directed to service calls in emergencies without first reporting to work.

On the day of the accident Thomas deviated from his normal route to work and was on his way to pick up his daughter at her home near South-field and Plymouth Road to take her to school. The route which Thomas planned to take to work upon dropping the daughter at school is unknown. The employer had an expressed policy prohibiting driver-employees from using the trucks for personal use, of which the plaintiff was fully cognizant. However, testimony was received indicating that the employer acquiesced to some forms of personal use. No employee had been fired or otherwise punished for using the trucks for personal business even though several employees had been involved in accidents while on personal missions.

The hearing referee, on March 21, 1969, found the injury did not arise out of and in the course of plaintiff’s employment. The Workmen’s Compensation Appeal Board affirmed on September 1, 1972 and this Court granted leave to appeal on May 31, 1973. 389 Mich 795. The defendant moved for reconsideration which was granted. 390 Mich 771-772 (1973). Application for leave to appeal was then granted on November 1, 1973. 390 Mich 797-798.

II —CONKLIN

The Workmen’s Compensation Appeal Board in its opinion in this case relied upon but forthrightly challenged this Court to review the stringent rule in Conklin v Industrial Transport, Inc, 312 Mich 250; 20 NW2d 179 (1945) in the light of today’s law. The board said:

"Even such a slight deviation from furthering his employer’s business for the sole purpose of carrying a personal mission would be a bar to plaintiff’s Workmen’s Compensation claim. Conklin v Industrial Transport, 312 Mich 250 (1945). A Fortiori, in this particular case plaintiff was not in the course of his employment at the time of the accident, because he had not even entered a business-connected path from which to deviate.

"Whether the Supreme Court in 1972 might interpret the law differently than two decades ago is not up to this Board to speculate.”

In Conklin Chief Justice Starr with absolute accuracy and ample precedent reflected the law of workmen’s compensation of that day. However, the basis of the workmen’s compensation law has changed radically since that day, and Conklin is no longer apt nor controlling. Conklin relied on the scope of employment analysis:

"The present case is controlled by our decision in Jeffries v. Jodawelky, 304 Mich. 421 [8 NW2d 121 (1943)], in which we said:

" 'If it be assumed that the route Jodawelky intended to take was feasible, though not the shortest, such facts would not fasten liability on the employer if the employee had departed from the scope of his employment and was engaged on business personal to himself.’” (Emphasis in Conklin.) 312 Mich 250, 256.

Jeffries was an action in negligence invoking respondeat superior. Respondeat superior and "scope of employment”, as this Court stated in Crilly v Ballou, 353 Mich 303, 310; 91 NW2d 493 (1958) are no longer:

"[T]he principles underlying the passage of compensation legislation. Scope of employment has its uses, it is true, in the application of the doctrine of respondeat superior. But compensation does not involve respondeat superior and recovery in compensation cases turns not on the common-law concept of scope, of employment but upon the statutory requirement of course of employment. The 2 concepts have a different content. In fact, distinguished students of the subject have stated that, 'perhaps the most important guide’ for the interpretation of the expression 'arising out of and in the course of his employment’ is to 'realize that it should be sharply differentiated from the technical phrase "scope of employment” designed to circumscribe the area of vicarious liability to third persons.’ ”²

Our response to the Workmen’s Compensation Appeal Board therefore is that they properly raised the question of Conklin’s continuing validity. Conklin no longer is controlling precedent. Cessante ratione legis, cessat et ipsa lex.

Ill —PERMITTED PERSONAL ACTIVITY

It is a fair conclusion from the facts that Thomas and the other employees of Certified Refrigeration, Inc. were performing a service for that company in taking company vans home, caring for them there and displaying the company name and slogan on them. If the facts in addition establish, and this is not clear, that Thomas acted under general acceptance by the employer that company vehicles would be used from time to time for personal purposes, then it would appear that this Court on the basis of a combination of Burchett v Delton-Kellogg School, 378 Mich 231; 144 NW2d 337 (1966); Howard v Detroit, 377 Mich 102; 139 NW2d 677 (1966) and Beaudry v Watkins, 191 Mich 445; 158 NW 16 (1916) would be justified in finding that Thomas’ injury "arose out of’ and "in the course of’ his employment.

In Burchett, this Court found compensable an injury while enroute from school of a school teacher required by her job to bring school work home every night. We held, through Chief Justice T. M. Kavanagh, that although what the employee was doing might further her own interest,³ her injury was compensable so long as she was at the same time performing a service for her employer. Chief Justice T. M. Kavanagh capsulized the rule as follows:

"The rule has been reduced to a simple formula: If a special trip would have had to be made if the employee had not combined this service with his going or coming trip, the dual-purpose rule applies.” 378 Mich 231, 236.

See also Clifton v Kroger Grocery & Baking Co, 217 Mich 462; 187 NW 380 (1922); Anderson v Kroger Grocery & Baking Co, 326 Mich 429; 40 NW2d 209 (1949).

In Burchett the entire trip was wholly dual-purpose. In Thomas part of the trip was predominantly personal, although the overall trip was dual-purpose.

In Howard, as pointed out in Burchett, "[p]laintiff Howard was concededly on his own time and performing no service for his employer.” 378 Mich 231, 234. The facts in Howard were that the employee bus driver had a morning run and an afternoon run with from three quarters of an hour to five hours in between on different days. While food was available at the terminal, Howard normally went home and was going home the day he was injured. Justice O’Hara speaking for this Court said "it was a circumstance of his employment that placed plaintiff in this case where he was when he was accidentally injured.” (377 Mich 102,110.) Furthermore, this Court said:

“We are not unmindful that no incident of plaintiffs 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.” (Emphasis in Howard.) 377 Mich 102, 109.

Yet as we have indicated this Court said "it was a circumstance of his employment” that set up the injury.

A principle similar to that in Howard is found in Nemeth v Michigan Building Components, 390 Mich 734; 213 NW2d 144 (1973). That case, however, involved work in a factory rather than a driving case such as Thomas. In Nemeth, the employer permitted the employee to stay after work and use company machinery for personal purposes. The employee was injured when operating that equipment. This Court through Justice Levin held that the employer derived the benefit of promoting and maintaining good employee relationships by allowing the employee to use company equipment after hours and concluded that:

"There is a sufficient nexus between the employment and the injury in a case where an employee sustains an injury while using equipment provided by the employer on the employer’s premises so that recovery should be allowed even though the injury occurred after regular working hours and the equipment was being used for a purpose other than the manufacture of the employer’s products.” 390 Mich 734, 738.

Finally, Beaudry v Watkins, 191 Mich 445; 158 NW 16 (1916) deals with a delivery boy, reluctantly given permission to lunch home between errands, being injured on his way from home to the next job, when the truck he was holding on to turned quickly and threw him off his bicycle under the wheels of the following truck. This Court affirmed compensation even though he was on a detour.⁴

So in Beaudry vte allowed compensation during the return from an authorized deviation and in Burchett we permitted compensation to an employee injured during a trip serving a dual personal and business purpose. These cases combined with Howard, which authorized compensation in some instances where the injury occurred during an activity involving a purely personal purpose, would cover Thomas, if indeed the personal purpose was a matter of general tolerance in view of the employer interest in the employee garaging of the trucks, etc.⁵

We do not suggest that every authorized use of a company-owned vehicle or deviation from a business route will fall within this triad of cases. An authorized but totally private excursion such as using the company vehicle for weekend personal errands certainly is not covered because such trips lack a dual purpose required by Burchett or "a sufficient nexus between the employment and the injury” required by Nemeth. If a personal business detour is so great that the deviation dwarfs the business portion of the trip, it no longer can be said that it is "a circumstance of [the] employment” as required by Howard. This Court will not attempt to fix any formula, but in any case the nature of the deviation must be balanced against the clarity of authorization and effect of the activity on the employment relationship or the interests of the employer.

We recognize that the Workmen’s Compensation Appeal Board accepted the referee’s finding of "[prohibition by Defendant employer against use of company trucks by driver-employees for use on personal business”.

Obviously this Court does not overlook that finding, but in view of the fact this Court is remanding the matter to the board for further consideration not inconsistent with this opinion, the board may wish to permit the parties to address themselves to the point that despite an expressed company policy forbidding personal use by employees, the employer acquiesced in use of the trucks by drivers for personal purposes and whether such tolerance by the employer encompassed the nature and degree of deviation contemplated by Thomas on the day the accident took place. In determining whether there was acquiescence on the part of the employer, implied agreements or understandings between employer and employees, the employer’s reaction to specific personal uses in the past and the nature of the employment itself may be relevant.

IV —UNPERMITTED PERSONAL ACTIVITY

If it were found that Thomas’ detour for personal business was authorized through the employer’s acquiescence or in some other manner, then it would be unnecessary to consider the further issue whether injury is compensable which occurs off the employer’s premises during a personal activity unapproved by the employer but where the activity is reasonably incidental to the employment relationship.

Such consideration would be of first impression. It would involve the extension of the rule in Crilly v Ballou, 353 Mich 303; 91 NW2d 493 (1958) from its normal factory locale to the open road.

Such an extension might well fall within the general policy enunciated by Justice T. G. Kavanagh in Whetro v Awkerman, 383 Mich 235, 242; 174 NW2d 783 (1970), where he said for this Court:

"The purpose of the compensation act as set forth in its title is to promote the welfare of the people of Michigan relating to the liability of employers for injuries or death sustained by their employees. The legislative policy is to provide financial and medical benefits to the victims of work-connected injuries in an efficient, dignified, and certain form. The act allocates the burden of such payments to the most appropriate source of payment, the consumer of the product.”

That certainly was the policy animating Crilly. In fact it might be said that workmen’s compensation, like the gentle rain from heaven, falls upon the just and unjust alike so long as the injury arose out of and in the employment ambience.⁶

Justice Talbot Smith in Crilly, in reaching his conclusion that the deviation from regular work commonly known as horseplay was part of the employment environment and hence injuries resulting therefrom were compensable, quoted from Secor v Penn Service Garage, 19 NJ 315; 117 A2d 12 (1955) as follows:

" 'An employee is not an automaton, and, even when he is highly efficient, he will to some extent deviate from the uninterrupted performance of his work. Such deviation, if it be considered minor in the light of the particular time, place and circumstance, is realistically viewed by the employer and the employee as a normal incidence of the employment relation and ought not in this day be viewed as legally breaching the course thereof. Fulfillment of the high purposes of our socially important and ever broadening workmen’s compensation act suggests this approach and nothing in the statutory terms dictates any narrower position.’ ” 353 Mich 303, 314.

Whether and what kind of a rule extending Crilly to the vehicle cases should be adopted by this Court may not need to be confronted by this Court, if some form of acceptance or tolerance of private purpose driving is found on remand. In any event, this Court would be better prepared to consider the matter with a record, Workmen’s Compensation Appeal Board opinion and briefs of counsel specifically directed to that issue.

V —CONCLUSION

As already indicated, we hold in response to the Workmen’s Compensation Appeal Board question that Conklin due to basic changes in the workmen’s compensation law is no longer controlling precedent in Michigan. We have examined the other two questions raised in this matter but do not find we would be justified in ruling definitively on either as both parties and the Workmen’s Compensation Administration deserve an opportunity to prepare a record, decision and arguments directed to our observations in this case, and we in turn, if necessary, would be in a better position to do justice for all concerned.

The matter is remanded to the Workmen’s Compensation Appeal Board for further proceedings not inconsistent with this opinion. This Court retains jurisdiction.

Costs to abide the final result.

T. M. Kavanagh, C. J., and T. G. Kavanagh, Swainson, and Levin, JJ., concurred with Williams, J.

1 Forrest Thomas died on August 6, 1970 and Suzette Thomas, administratrix of his estate was substituted as party plaintiff.

2 Conklin also relied upon Meehan v Marion Manor Apartments, 305 Mich 262; 9 NW2d 534 (1943) which in light of Whetro v Awkerman, 383 Mich 235; 174 NW2d 783 (1970), is of doubtful validity today. Haggar v Tanis, 320 Mich 295; 30 NW2d 876 (1948); Carner v Sears, Roebuck & Co, 337 Mich 219; 59 NW2d 263 (1953); and Weersing v Airseal Insulating & Roofing Co, 338 Mich 400; 61 NW2d 630 (1953) which also denied recovery in situations involving deviations were based upon reasoning similar to that employed in Conklin and likewise are no longer controlling on this question.

3 Generally, injuries sustained in going to and from work are not compensable. Lipinski v Sutton Sales Co, 220 Mich 647; 190 NW 705 (1922); Dent v Ford Motor Co, 275 Mich 39; 265 NW 518 (1936); Ditch v General Motors Corp, 345 Mich 178; 76 NW2d 64 (1956).

4 In Beaudry the delivery boy was returning from a personal errand (lunch) while Thomas had not as yet completed his personal mission (picking up his daughter and taking her to school). However, this Court will not follow the path taken by some courts in other jurisdictions which have granted or denied compensation based on rigid rules such as whether the personal mission was completed and the employee was returning to the business route. See London Guarantee & Accident Co v Herndon, 81 Ga App 178; 58 SE2d 510 (1950). In that case an employee was returning home to make out business reports, but drove past the turn nearest his home and continued in a direction away from his ultimate destination. In the process of turning his vehicle around to return home, he was killed. The Court stated because at the moment he stopped and attempted to turn around he resumed the duties of his employment, and compensation was allowed. However, the Court suggested that any point after he passed his turn but before he stopped to turn around, he was not in the scope of employment and recovery would have been denied.

In Beaudry the Court placed importance on the fact that the accident occurred within the time during which the boy was employed. The injury to Thomas occurred after he had commenced to bring the truck to his employer’s place of business, and thus, was within a time during which he was employed when the accident took place even though he had not actually reported for work.

5 Testimony was introduced suggesting that the employer knew of and acquiesced to personal uses of vehicles by servicemen on several occasions:

A. (Testimony of Charles Miranti, union steward.)

"A. Occasionally they come up, yes.

"Q. Have you ever transported Mr. Crawford, the president of the company, in your truck?

"A. Yes, I have, in the morning. I have picked him up a couple of times from home and brought him in to work.

"Q. And why is this?

"A. Oh, he has had trouble with the car or something, and I had to go and pick him up.

"Q. Did you ever have a conversation with him at these times?

"A. Yes, one time he asked me if I ever used it for personal business and I said yes.”

B. (Testimony of Charles Miranti.)

"Q. Four years as union steward, has any grievance been filed or suspension or firing of any employees for personal use of trucks?

'A. Not personal use of trucks, no.

"Do you know of any grievance being filed against any driver, repairmen, for use of a company vehicle for other than company business?

"A. No, sir.

"The Referee: That’s in the last four years?

"A. In the last four years, yes, sir.”

C. (Testimony of Robert John Crawford, company president.)

"Q. I see. Mr. Crawford, at any time has anyone ever been suspended or fired for using your trucks on personal business?

"A. Suspended or fired, they have paid for two trucks that they damaged on personal business, but they’ve never been suspended.

"Q. He was in a truck and had a wreck?

"A. That was what the police report was.

"Q. Was he suspended or fired?

"Q. He just paid for the property damage to the truck?

"A. Yes, sir.”

D. (Testimony of Robert John Crawford.)

"Q. I see. Mr. Crawford, are you aware of coffee breaks that they take?

”A. I sure am, sir.

"Q. They go and assemble at different restaurants around there, is that right?

"A. Yes, sir.

"Q. And there is a gathering of Certified Refrigeration trucks at several different restaurants within the area?

"A. I imagine so, sir. They all put coffee on their time cards, one-quarter hour.

"Q. Did you ever go over and talk to them?

"A. Only once, sir, about four years ago.

”Q. And they were all scattered?

"A. They scattered when I came in. I couldn’t buy them their coffee. This was before I made them put it on their time cards.

"<?• Have you ever received phone calls concerning a number of Certified Refrigeration trucks scattering at a particular beer parlor?

"A. yes, I’ve received one from a commercial department, trucks.”

6 In this regard it is important to distinguish workmen’s compensation from unemployment compensation. The latter is properly grounded on a theory of fault in which compensation is denied when the fault of an employee is established, but in workmen’s compensation cases questions of fault have no place in the deliberations on the issue of compensation.