Day v. Gold Star Dairy , 307 Mich. 383 ( 1943 )

The fact that plaintiff was convicted by a jury in the justice court for reckless driving in violation of the statute, 1 Comp. Laws 1929, § 4696 (Stat. Ann. § 9.1564), is in no sense determinative of his rights under the workmen's compensation act, a civil proceeding in which the judgment of conviction in a criminal case cannot be used as evidence to establish the truth of the facts to be determined therein. Smith v. Brown,2 Mich. 161. See citations in 80 A.L.R. 1145, 130 A.L.R. 690. Whether plaintiff violated the statute in such manner as to make his conduct wilful and intentional^* must be determined by the department independently of the decision of a jury in a separate action. Fortin v. Beaver Coal Co., 217 Mich. 508 (23 A.L.R. 1153), was a case where the violation of the particular statute by the employee was clearly wilful and intentional misconduct. The statute in question established a rule of safety solely for the benefit of the miner while working in the mines. It made it a misdemeanor for one to pass across the bottom of a hoisting shaft instead of using the safe and convenient traveling way around the shaft. This rule was established by the legislature for the employee's own safety. Under the facts we held the violation to be intentional and wilful. It was no part of the employee's duties to try to cross the hoisting shaft. In the instant case, while plaintiff might have been guilty of a high degree of negligence in trying to pass another car on a wet pavement while going over a hill, I do not believe that it follows ipso facto that his conduct was wilful and intentional. The question was one of fact for the department of labor and industry (McMinn v. C. Kern Brewing Co.,202 Mich. 414), whose determination is conclusive. 2 Comp. Laws 1929, § 8451 (Stat. Ann. § 17.186).

With respect to plaintiff's violation of the statute, 1 Comp. Laws 1929, § 4707, as amended by Act No. 318, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 4707, Stat. Ann. 1943 Cum. Supp. § 9.1575), prohibiting passing upon a grade unless the driver's view is sufficient to insure safety, the general rule is that the mere violation of a statute, without more, is not wilful misconduct as a matter of law. The cases are collated in 23 A.L.R. 1161, 26 A.L.R. 166, 58 A.L.R. 197, 83 A.L.R. 1211, 119 A.L.R. 1409. In McMinn v. C. Kern Brewing Co., supra, p. 423, where we held the question of intentional and wilful misconduct was one for the department to determine, the court quoted with approval from the opinion of the department as follows:

"We do not find that any workmen's compensation law except that of Michigan contains the phrase `intentional and wilful misconduct.' Many of the acts use the term `serious and wilful misconduct.' Some of them seem to use the term `serious misconduct,' and others the term `wilful misconduct.' The original bill as introduced in the Michigan legislature at the first extra session of 1912, contained the phrase `serious and wilful misconduct.' It was amended in the house by striking out the word `serious' and inserting in lieu thereof the word `intentional.' See House Journal, First and Second Extra Sessions 1912, page 74; Senate Journal, First and Second Extra Sessions 1912, pages 99 etsequitur; Senate Journal, First and Second Extra Sessions 1912, page 131; House Journal, First and Second Extra Sessions 1912, page 142. It would seem that the legislature deliberately inserted the word `intentional' in place of the word `serious,' and it seems to the board<sup>**</sup> that `intentional and wilful misconduct' ought to mean something more than `serious and wilful misconduct.'"

It is within the province of the department to determine whether the action of an employee claimant was intentional and wilful misconduct. There is but little difference in the meaning of the words "wilful and wanton misconduct" in the guest act (1 Comp. Laws 1929, § 4648 [Stat. Ann. § 9.1446]) cases from "intentional and wilful misconduct" under the workmen's compensation act. In Re Mueller's Estate, 280 Mich. 203, we held that driving at nighttime at a speed from 90 to 100 miles an hour was not wilful and wanton misconduct. In LeGroh v.Bennett, 271 Mich. 526, the defendant was driving his car at from 50 to 60 miles an hour on a slippery road in a heavy fog with objects discernible for only a few feet ahead, when he swerved to the left and hit a trailer on the lefthand side of the road, injuring plaintiff, a guest passenger in defendant's car. We held that this was not wilful and wanton misconduct. We cited with approval Wyma v. Van Anrooy, 260 Mich. 295, where again one car in order to pass another went to the left and ran into an oncoming car. InClem v. Chalmers Motor Co., 178 Mich. 340 (L.R.A. 1916A, 352, 4 N.C.C.A. 876), we held that a workman who, instead of using a ladder to come down from a roof, tried to descend by means of a rope was not guilty of intentional and wilful misconduct so as to defeat his claim under the compensation act. A claimant, although guilty of gross negligence, is not chargeable thereby with intentional and wilful misconduct. Gignac v. StudebakerCorp., 186 Mich. 574. Under the provisions of the motor vehicle act it is a misdemeanor to violate any of the provisions of the act unless violation is by the act or other law of the State declared to be a felony. 1 Comp. Laws 1929, § 4745 (Stat. Ann. § 9.1614). If an employee, while engaged in his regular occupation, meets with an accident through his failure to give a signal when starting, stopping or turning (1 Comp. Laws 1929, § 4711 [Stat. Ann. § 9.1579]), or fails to stop at certain through highways (1 Comp. Laws 1929, § 4715 [Stat. Ann. § 9.1583]), or violates any single provision of the act through inattention or inadvertence and not intentionally and wilfully, I do not believe that the fact of such violation alone should preclude him from recovering compensation. The question should be for the determination of the department in each individual case.

In the instant case, the employee was guilty of a high degree of negligence when, while driving his car, not on any private business but in carrying out his duties, he drove on the wrong side of the road going up a hill and attempted to pass another car. His haste may have been due to his desire to further his employer's interests and if so, the violation of the statute may have been inadvertent. I do not believe it is for us to determine with finality whether plaintiff's conduct was wilful and intentional.

The award is affirmed, with costs to plaintiff.

CHANDLER, NORTH, STARR, WIEST, and BUSHNELL, JJ., concurred with BUTZEL, J.

^* See 2 Comp. Laws 1929, § 8418 (Stat. Ann. § 17.152). — REPORTER.

^** The powers and duties of the industrial accident board, here referred to, have been transferred to the department of labor and industry and the board abolished. See 2 Comp. Laws 1929, § 8312 (Stat. Ann. § 17.3). — REPORTER.