INJURED WHILE INTENTIONAL AND WILFUL MISCONDUCT-CARPENTER DESCENDING FROM A BUILDING BY A ROPE INSTEAD OF A LADDER. Applicant's decedent was employed as a carpenter by respondent and on the day of his injury was working on the flat roof of a large building which was being constructed, the roof being about 20 feet from the ground. The weather was very cold and decedent and the other men were called down from the roof by the foreman at about 9 o'clock in the forenoon for a hot coffee lunch, which it was usual to serve to the men to mitigate the effects of the cold. The means generally used for descending from the roof was an extension ladder, but decedent chose to descend by means of a rope, and in some manner lost his hold of the rope and was killed. Payment of compensation was refused on the ground: (1) That the injury is not one arising out of and in the course of the employment, and (2) that it was the result of decedent's intentional and wilful misconduct. HELD: 1. That the act of coming down from the roof for coffee lunch at the foreman's call was in the course of deceased's employment. 2. That the dangers ordinarily incident to descending from such roof arise out of the employment, and this fact is not fundamentally changed by varying the manner and means of descending as in this case. 3. There being no proof that any order or rule forbidding the use of a rope in descending was communicated or made known to decedent, and it appearing that other employes used the rope method in descending, and that deceased used much care in letting himself down over the edge of the roof with such rope, his act did not constitute intentional and wilful misconduct within the meaning of the law. Opinion by the Board: On December 12, 1912, Charles S. Clem was in the employ of Chalmers Motor Company in Detroit and was receiving an average weekly wage of $20.65. He was a carpenter by trade and was working on the roof of the new storage building which was being erected by the company. This building was approximately 160 feet long, 150 feet wide and 19 or 20 feet high, the roof in course of construction being what is commonly called a flat roof. The day was cold and the men employed on this roof, 25 or 30 in number, were obliged to wear gloves or mittens in their work. During the few days of very cold weather at this time, the foreman provided hot coffee for the men, and at about 9 o'clock in the forenoon of each day would call them down from the roof for a hot coffee lunch. The ordinary means used by the men for ascending to and descending from the roof of the building was an extension ladder such as painters use, 20 feet in length, resting against the south side of the building and tied to it by ropes. This was the only ladder provided. The heavier material used by the men in their work was lifted to the roof by block and tackle with rope falls, and in addition to this there were about a dozen ropes from 20 to 30 feet in length which were used to pull up lighter material over the cornice of the building when needed by the men working on the roof. These ropes were located around in different places so that when material was needed at any partiular place there would be a rope near at hand with which to haul it up. The ropes were lying on the roof and at places where the men happened to leave them. At about 9 o'clock in the forenoon of December 12, 1912, the foreman called the men working on the roof to come down for hot coffee, and it appears that they proceeded to go down by way of the ladder, one following another. While others were going down in this way, Mr. Clem said to a fellow workman named Sekos. "Hold this rope and I will slip down." From this point Sekos tells the story as follows: "I was in a hurry to get down. I wanted to get down, but I just held it (the rope). Another man was behind me on the roof, but did not have hold of the rope. I held the rope all right; it 營 * didn't let loose at all; it didn't break, and if he had hung on the rope all right he would have got down safely. I guess he lost the rope; I guess his hands were cold; he had mitts on his hands and so did I. It was pretty cold; we were so cold we were going.down to get some coffee." The only other eye witness was Albert E. Glaser, the man stood behind Sekos when Clem started down the rope. Glaser testified in substance that Clem asked Sekos to hold the rope for him; that Sekos held one end of the rope; that Clem took the other end of it, went over to the edge of the roof and got down, feet first on his knees, and went down backwards, with his legs down first holding onto the rope with his hands. That he was careful about it, and that would be the most careful way to do it; Clem had gloves on his hands; it was so cold that we could not work without gloves; we were all cold at that time and fingers a little stiff with the cold; a man with fingers stif fened with the cold would not be able to hold onto a rope as he otherwise could. Angus E. McDonald was subforeman, having charge of part of the men working on the roof. McDonald had been a sailor and used a rope instead of the ladder on going up to and down from the roof of this building probably four or five times; and on one occasion when he so used a rope, the general foreman cautioned him and the men then present not to use ropes for going up and down, but to use the ladder. There was no evidence that Clem was present at this time, or that the foreman's order not to use the rope ever reached him. It is conceded that no question as to the effect of violation of shop rules or orders is involved in this case. It is also conceded the "Coming down off the roof for coffee lunch" at the foreman's call was "in the course of Clem's employment." The issue is narrowed down to "the manner of coming down" from the roof, and the means used by Clem for that purpose. It is contended on behalf of the company that compensation should be denied because (1) the injury is not one arising out of and in the course of the employment of deceased, and (2) that it was the result of his intentional and wilful misconduct. The first objection, we think, cannot be sustained. It is a matter of common knowledge that carpenters' employes in the erection of a building must ascend and descend and change their positions on the building as the work requires and that they are often required to choose the means and manner of so doing. This is also shown by the proofs, attention being called to the testimony of McDonald, the sub-foreman, that it is not uncommon for men to go down a rope if there is one there, and that he would sooner go down a rope than not. We think the means and manner chosen by deceased to descend from the roof, did not place his act of descending outside of the course of his employment. Did his choice of the means and manner of descent constitute "intentional and wilful misconduct" within the meaning of the Compensation Law? Mere neglig ence on the part of deceased will not defeat the claim of his widow for compensation. A mistaken estimate of the risk in descending by means of a rope, or the mere choosing of means and manner of descending which were less safe than the ladder, would at most be only negligence on the part of deceased. There is no evidence of wilfulness except what might be inferred from the naked fact of choosing the rope method of descending. The evidence shows that deceased exercised much care in letting himself down over the edge of the roof with the rope. There is an entire absence of any showing of wilfulness by any act or word of deceased except as above, and we think it may be fairly said that deceased acted in the belief that he could safely descend by the rope. He fell because of losing his hold on the rope. Whether this resulted from his fingers being stiffened with cold, or from his gloves, or for some other cause does not appear. It was not impossible that by reason of frosted fingers or some other cause he might have lost his hold on the ladder, had he chosen that way of descending. We are of the opinion that the act complained of did not constitute "intentional and wilful misconduct" within the meaning of the statute, and the decision of the arbitration committee in favor of the widow is affirmed. This case was appealed to the Supreme Court and affirmed the following being the full opinion of the Supreme Court: SUPREME COURT. JESSIE B. CLEM, VS. Claimant and Appellee, CHALMERS MOTOR COMPANY, Defendant and Appellant. 1. MASTER AND SERVANT INDUSTRIAL ACCIDENT COMMISSION-PERSONAL INJURIES-COURSE OF EMPLOYMENT. Under the terms of Act No. 10, Special Session 1912, providing for an industrial accident board and authorizing compensation for injuries to any servant "arising out of and in the course of his employment," the provisions included a decedent who was called from the roof of a building where he was working to partake of a lunch served by the employer, and who, in descending by means of a rope that extended over the edge of the roof and within 12 or 13 feet of the ground, instead of using a ladder which was provided and was safely attached to the roof, fell and was killed; his widow's right of recovery was properly sustained by the industrial accident board. 2. SAME. Nor was his act intentional and wilful misconduct so as to defeat the claim. MCALVAY, C. J., dissenting. Certiorari by the Chalmers Motor Company to review a ruling of the Industrial Accident Board allowing a claim in favor of Jessie B. Clem. Submitted June 19, 1913. Affirmed January 5, 1914. Bowen, Douglas, Eaman & Barbour, for appellant. |