Weersing v. Airseal Insulating & Roofing Co.

61 N.W.2d 630, 338 Mich. 400, 1953 Mich. LEXIS 335

• Court: Michigan Supreme Court
• Decided: December 29, 1953
• Docket: Docket No. 37, Calendar No. 45,843
• Status: Published

Opinions

Reid, J.

Defendants appeal from an award by tbe workmen’s compensation commission for personal injuries received by plaintiff in an automobile accident, at tbe time of wbicb accident plaintiff claims be was in tbe employ of tbe defendant company (hereinafter referred to as defendant) and engaged in tbe business of the defendant.

Plaintiff had sold to bis son the business of the defendant company and thereafter worked for defendant as tbe only salesman for tbe business. Plaintiff owned his own car and received no allowance for expenses in using bis car. Plaintiff worked on a strict commission basis of 15 and 20%. He ordinarily worked 5 days a week.

On Friday evening, September 29,1950, plaintiff’s son came to plaintiff’s bouse and said that he, tbe son, was going tbe next day to Ann Arbor and asked plaintiff to go on certain jobs on Saturday, September 30th. He gave plaintiff 2 cards, that is, the designation of 2 prospects to call on in Grandville, .after wbicb he was to go to a prospect at Jenison, and then to go to Black Lake at Holland where tbe defendant bad started a job; plaintiff took along in tbe trunk of bis car some more shingles for that job. Tbe son told plaintiff after delivering the shingles to go to Mrs. Vanden Beldt’s cottage at Cardón Beach to pick up some roofing felt if any bad been left in tbe garage there, which was tbe termination of the directions given by tbe son to plaintiff for tbe day’s activities, September 30th.

On Saturday, September 30th, after having bad lunch at home, plaintiff accompanied by bis wife left Grand Rapids and made 2 stops at Grandville. Neither of tbe 2 prospects were at home. Proceeding from Grandville on M-21, they stopped at Jenison where be made a call, then drove on M-21 to Holland, and made the call at tbe Black Lake job. Then plain-tiff and bis wife drove over to tbe cottage at pardon Beach, where plaintiff looked in and around the garage for a roll of felt roofing which he did not find.

After completing the stop at Cardou Beach, if the-plaintiff and his wife by their conversation had not changed plaintiff’s plans, plaintiff would then have-returned by M-21 to G-randville to call again on the-2 prospects whom he had not found there earlier in the afternoon, but instead, plaintiff and his wife discussed having dinner; it was late in the afternoon and plaintiff’s wife wanted to have a chicken dinner at the Holiday Inn at Pottawatamie, which is just east of Grand Haven and a distance of 18 miles north and east of the cottage at Cardou Beach. They left on the road for Pottawatamie and having traveled north 3 miles, plaintiff and his wife changed their minds about going to Pottawatamie. Plaintiff said r “You don’t want chicken dinner; let’s go and get a steak dinner at the Hub at Zeeland.” He reminded his wife that he had obtained a chicken and they could have that the nest day, Sunday, for their Sunday dinner. Accordingly, they again changed their plan and took a road which they had not before contemplated, and the accident happened on that road before they had reached M-21 on which, but for the accident, plaintiff would have resumed the course of his employment and gone to Grandville.

The workmen’s compensation commission in making its award, among other things stated:

“His [plaintiff’s] travel sometimes kept him on the road at meal times, and getting something to eat on those occasions was a necessary incident thereto. His work did not confine him to any particular route nor to any particular eating place.”

The commission also considered in making its award that the employment was the dominant purpose of the plaintiff in making his trip upon the day in question. The commission found that the injuries ■complained of arose ont of and in the course of plaintiff’s employment and made an award accordingly.

We think the commission was in error in considering that the injury occurred in the course of plaintiff’s employment. If plaintiff on his return from the vicinity of Holland had intended merely to carry out the course of his employment, he would have returned by M-21 to G-randville. Instead, at the suggestion of his wife he made diversion from such direct route from one place where he was carrying out the terms of employment to the next place that he would go to in the course of such employment and went actually 3 or 4 miles distant in another direction at his wife’s suggestion and for her enjoyment and had not returned to the direct line of travel in his employment when the accident in question in this case occurred.

Among many Michigan cases, see Conklin v. Industrial Transport, Inc., 312 Mich 250; Haggar v. Tanis, 320 Mich 295; and the majority opinion in Carner v. Sears, Roebuck & Company, 337 Mich 219.

The award appealed from is vacated. Costs to appellants.

Dethmers, C. J., and Butzel, Carr, and Sharpe, J J., concurred with Reid, J.