James Wheeler, former district game supervisor of the defendant department of conservation, was accidentally electrocuted August 9, 1955. December 6, 1956, Mr. Wheeler's dependent widow and minor children received an award of compensation — under the workmen's compensation act — on finding by the appeal board that such death arose out of and in the course of his employment by the defendant department. February 28, 1957, it having been represented that the appeal board's finding collided with rules set forth in Daniel v. Murray Corporation of America, 326 Mich. 1; Hickman v. City of Detroit, 326 Mich. 547; Meehan v. Marion Manor Apartments, 305 Mich. 262, and kindred cases, we granted application of the defendant employer and its insurer for leave to review such award.
The appeal board found, on strength of supporting evidence and legitimate inference therefrom, that Mr. Wheeler (and family) was required by the employing department of conservation to live in a cottage provided by the department on the State-owned
"The fatal injury arose out of and in the course of employment on the following 2 separate and distinct bases: (1) It was necessary that decedent have and use a television receiving set in order to properly and fully perform his regular duties of employment and he was engaged in installation work concerning same at the time of injury, and (2) Maintenance of the employer's premises, including his own residence, was decedent's responsibility and he was engaged in an act of maintenance when the injury occurred."
We turn now to the circumstances of Mr. Wheeler's death. He had been assigned to the Pointe Mouillee reserve but a short time prior to tragedy. The predecessor game supervisor, Merrill Petoskey, had attached a conventional television mast with antenna to the chimney of the cottage. When he departed for new assignment Petoskey left the connecting wire hanging outside the cottage as far as the floor level, from which point it was extended inside the house and on the floor to the television
Did Mr. Wheeler's death arise out of and in the course of his employment? We find no occasion for review of the authorities cited by defendants. Our decisions construing section 1 of part 2 of the workmen's compensation act (CL 1948, § 412.1; CLS 1956, § 412.1 [Stat Ann 1950 Rev § 17.151; Stat Ann 1955 Cum Supp § 17.151]) have undergone epochal changes since this application for leave to appeal was granted (Krist v. Krist House Moving Company, Inc., 348 Mich. 230; Sheppard v. Michigan National Bank, 348 Mich. 577; Freiborg v. Chrysler Corporation, 350 Mich. 104; Dyer v. Sears, Roebuck & Company, 350 Mich. 92) and Mr. JUSTICE SMITH'S exhaustive dissent in Salmon v. Bagley Laundry Co., 344 Mich. 471, 475, has now been elevated to the status of recognized authority. In the latter opinion our Brother quoted with approval, from a later and obviously better considered decision of the supreme court of Massachusetts (Kubera's Case, 320 Mass. 419, 420 [69 N.E.2d 673]), a broad and comprehensive rule we adopt as presently decisive (page 491 of report of Salmon):
In undertaking to provide a better and more serviceable installation of television facilities in the department's isolated cottage this "resident employee"
SMITH, EDWARDS, and VOELKER, JJ., concurred with BLACK, J.
CARR, J. (concurring).
The material question at issue in this case is whether the injury resulting in the death of James Wheeler arose out of and in the course of his employment. On the hearing before the referee testimony was received from which an
The situation presented fairly comes within the rule recognized in Anderson v. Kroger Grocery & Baking Company, 326 Mich. 429. There defendant's employee, as found by the workmen's compensation commission, was, at the time of the accident in which he was injured, engaged in a twofold purpose. The testimony indicated that his mission involved not only a private purpose but also the performance of an act within the scope of his employment. The conclusion is warranted that a like situation existed in the case now before us, thus justifying the conclusion of the appeal board that the electrocution of Mr. Wheeler arose out of and in the course of his employment. Under the rule in the Anderson Case the fact that he was promoting also a private purpose did not alter the situation.
The statute (CL 1948, § 413.12 [Stat Ann 1950 Rev § 17.186]) provides that the findings of fact made by the compensation commission (now the appeal board), acting within the scope of its powers, "shall, in the absence of fraud, be conclusive." There being testimony to support the finding made, this Court may not on appeal change the result. Shaw v. General Motors Corporation, 320 Mich. 338; Hooks v. Wayne County Road Commissioners, 345 Mich. 384.
The award is affirmed.
DETHMERS, C.J., and SHARPE, and KELLY, JJ., concurred with CARR, J.