
    WEERSING v. AIRSEAL INSULATING & ROOFING COMPANY.
    Workmen’s Compensation — Roofing Salesman — Deviation from Direct Line of Travel — Accident—In Course of Employment.
    Roofing salesman who worked on a commission basis did not suffer injury in the course of his employment, where highway accident occurred en route to an eating place and while he was away from direct line of travel, between last place he-had called and next place he was to stop on business of the' employer.
    Adams and Bushnell, JJ., dissenting.
    References for Points in I-Ieadnotes
    58 Am Jur, Workmen’s Compensation '§§ 222-228.
    Injury to solicitor, collector, or outside salesman as arising out of and in the course of the employment. 29 ALR 120; 36 ALR 474.
    Death or injury in course of traveling. 20 ALR 319; 49 ALR 454; 63 ALR 469; 100 ALR 1053.
    Injury to employee while going to or from work during lunch hour. 141 ALR 862.
    Appeal from Workmen’s Compensation Commission.
    Submitted June 9,1953.
    (Docket No. 37, Calendar No. 45,843.)
    Decided December 29, 1953.
    James Weersing presented Ms claim for workmen’s compensation against Airseal Insulating & Roofing Company, employer, and Auto-Owners Insurance Company, insurer. Award to plaintiff.
    Defendants appeal. Reversed.
    
      Waalkes, Wierenga & Sevensma, for plaintiff.-
    
      Alexander, Cholette, Buchanan, Perkins é Conklin (Edward D. Wells, of counsel), for defendants..
   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.

Adams, J.

(dissenting). It is an accepted rule in relation to the workmen’s compensation act, that a laborer, performing services off the employer’s premises, who has left his regular route for personal reasons is not within the ambit of his employment until he has returned to that regular route at a point not more distant from his destination than the point of his departure. That rule should not be applied to the circumstances of this case. All rules are subject to exception and the facts here presented do not fit into the usual pattern.

Plaintiff was employed to sell Ms employer’s products in an undefined area centered about Grand Bap-ids. No route was laid out for him nor schedule fixed. He had no prescribed hours of employment. He furnished his own transportation, paid his own expenses and received a commission only on those sales actually made. The conditions of his employment are not comparable to the customary situation where an employee with fixed income and definite hours of employment is directed to an established point of destination. Deviation from the regular route in such eases is obviously outside the intended scope of the employment.

In this case the only directive given to plaintiff by his employer on the day of the accident was to call on certain people. Two of the persons to be called upon were not at home in the afternoon and if they were to be seen that day, they had to be contacted in the evening. Plaintiff kept all of his other assignments of the day and then started for dinner in a direction away from Grandville, the area of his evening calls. After driving some 3 miles, he changed his mind and turned towards the Grandville area in order that he might be in that vicinity after the dinner hour. Begardless of whether he had temporarily interrupted his services to his employer or not, it seems clear that when he turned towards Grandville for the purpose of carrying out his intent to call on customers in that area, he was within the ambit of his employment as understood by both employee and' employer. His reason for going in that direction was to serve his employer. His presence in the area where the accident happened, the fact of his being in an automobile at the time of the accident and the path that he was traveling were all brought about by the purposes of his employment. There was a clear and certain causal relation between the circumstances of the accident and his employment.

“An accident, to be compensable, must be one arising ‘out of’ as well as ‘in tbe course of’ tbe employment. Appleford v. Kimmel, 297 Mich 8. To arise ‘out of’ tbe employment tbe injury sustained must bave a causal connection witb tbe work to be performed; it must be one wbicb follows as a natural incident to tbe employment, be connected witb it, and not tbe result of a risk disassociated therefrom. See Appleford v. Kimmel, supra; Dent v. Ford Motor Company, 275 Mich 39; Rucker v. Michigan Smelting & Refining Company, 300 Mich 668.” Meehan v. Marion Manor Apartments, 305 Mich 262.

To say that at tbe time of tbe accident be was not in tbe service of bis employer because of a fixed and all-encompassing rule would bring about a result not intended by tbe act. Application of tbe general rule to employment of tbe type here presented cannot be justified in logic or right. If applied, tbe employee would at all times be required to travel tbe customary or generally used route from customer to customer. Otherwise, in tbe course of a normal working day be would experience a constant change of status from employment to unemployment and back again. A stop for a cup of coffee would suspend tbe relationship. Taking a chance acquaintance a short distance off route or purchasing a package of cigarettes would bave tbe same effect. Such is not tbe intent of tbe law and surely tbe parties to the employment contract did not anticipate such a result.

Tbe conditions of employment in this case distinguish it from those cases where tbe general rule has been applied.

“ ‘The principal issue in this case is whether plaintiff’s injury arose out of and in tbe course of bis employment. We bave repeatedly held that tbe question of whether an injury can be said to bave arisen out of and in tbe course of tbe employment depends upon tbe particular facts and circumstances of each case. Under the statute (CL 1948, § 413.12 [Stat Ann 1949 Cum Supp § 17.186]), findings of fact by the workmen’s compensation commission are, in the absence of fraud, conclusive, if supported by competent evidence.’ Tegels v. Kaiser-Frazer Corporation, 329 Mich 84.” Carner v. Sears, Roebuck & Company, 337 Mich 219, 225.

The plaintiff was within the ambit of his employment when the accident occurred.

“ ‘An injury is received “in the course of” employment, as that term is used in the workmen’s compensation act, when it comes while the workman is doing the duty which he is employed to perform (CL 1929, § 8417, as amended by PA 1943, No 245) ? ” Carner v. Sears, Roebuck & Company, supra, 226.

The accident arose out of and in the course of his employment and plaintiff should be compensated. The award should be affirmed.

Bhshnell, J., concurred with Adams, J.

Boyles, J., did not sit. 
      
       OL 1948, § 412.1 (Stat Ann 1950 Rev § 17.151) .—Reporter.
     