Porritt v. Detroit United Railway

Kuhn, C. J. (after stating the facts). It is the defendant’s contention that the accident did not arise out of and in the course of deceased’s employment, as he had chosen the route to his employment of his own free will and had not even reached the vicinity of his work when the accident happened. The real question seems to be as to whether or not, under the peculiar facts of this case, the relationship of master and servant existed between the claimant’s decedent and the defendant at the time of the accident. In our opinion a critical analysis of this testimony shows that the-relationship had been created. The nature of the employment, that of a fence repair man, precluded any fixed place of employment, and the distance 'to the place of actual work depended, of course, upon the location of the particular fence along the right of way where the repairs were needed, and the testimony of the defendant’s foreman is that the decedent’s pay began at the substation, where the decedent was supposed to report for instructions, and that he drew his pay until his return to the substation, with an hour out for lunch. It was the primary duty of the decedent to report to the substation for his directions for the day, and as he had not appeared on the morning of the accident because of the unfavorable weather conditions, the foreman called at his house, as he had previously done, and there gave him directions for the day. The purpose of the foreman in going to the [203] house was, as he said, to get him to the work, because they needed him. To have waited for the electric car furnished by the company would have necessitated a delay of an hour to an hour and a half, and, in response to the order to report for duty, the decedent said that he would not wait for the car, but would walk, to which suggestion the foreman said he acquiesced. The case of City of Milwaukee v. Althoff, 156 Wis. 68 (145 N. W. 238, L. R. A. 1916A, 327), is similar in many respects. In that case the decedent was to report to his foreman at 7:30 o’clock each morning to receive instructions as to his work. He did so report, and, after receiving instructions as to where he was to work, proceeded towards the place, and while on his way injured himself, from which injuries he subsequently died. The court in that case said: “In the instant case, when the servant reported to his foreman and received his instructions for the day and proceeded to carry out these instructions by starting for the place where he was to work, we think the relation of master and servant commenced, and that in walking to the place of work the servant was performing a service growing out of and incidental to his employment.” We think that an examination of the cases of Hills v. Blair, 182 Mich. 20 (148 N. W. 243), and Guastelo v. Railroad Co., 194 Mich. 382 (160 N. W. 484, L. R. A. 1917D, 69), will show that they are readily distinguishable from the facts now before us. In neither of these cases does it appear that the employee at the time of the accident was acting under direct orders of the employer, and that it was necessary for the employee to report at a certain place apart from the scene of his work before directions as to his day’s work could be had. See Beaudry v. Watkins, 191 Mich. 445 (158 N. W. 16, L. R. A. 1916F, 576); Kunze [204] v. Detroit Shade Tree Co., 192 Mich. 435 (158 N. W. 851, L. R. A. 1917A, 252). We are of the opinion that it conclusively appears that, at the time the applicant’s decedent met his death, he was on duty in the line of his employment, acting under the direction of his employer, and therefore that the relationship of master and servant had commenced. We conclude therefore that the accident did arise out of and' in the course of the decedent’s employment, and that the board acted properly in so holding. The award is accordingly affirmed, with costs. Stone, Ostrander,,, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.