This is an appeal in the nature of certiorari from an award of compensation to plaintiff by the department of labor and industry.
The accident occurred on March 10, 1938, plaintiff on that date being in the employ of defendant in Grayling, Michigan, as an automobile salesman. He regulated his own hours of employment and worked on a commission basis.
For some period of time, he had been attempting to sell an automobile to one Kangas, who had previously purchased a car in 1931. On March 9, 1938, Kangas, a carpenter, went to the salesroom to determine if his tool box could be fitted to the car he was inclined to purchase. About 9 or 9:30 p. m. of the same day, plaintiff and one Petersen, a mechanic employed in the garage, left the garage upon closing for the day and went to Lovely's restaurant where they remained until approximately 2 a. m. of the following day, During this entire period, according to the testimony adduced by plaintiff, he and his companion did nothing but drink coffee, although beer was sold in the restaurant. About 2 a. m., Kenneth Clise and Kangas, who had been in attendance at a fish fry where beer was served, entered the restaurant. The four visited for about an hour, when George Collins entered and requested assistance in starting his automobile. The entire party responded and, after having successfully attempted to start *Page 101 Collins' car, stopped at the Plaza Grill where more coffee was consumed.
After spending a short time at the grill, they all entered the car used by plaintiff as a demonstrator and started for Gaylord, some 28 miles away, Petersen having been delegated to drive, with Kangas and Clise riding in the rear seat and plaintiff in the front seat with Petersen. It is the claim of plaintiff that the purpose of the expedition was to demonstrate the car to Kangas and discuss the prospective sale thereof with him. He testified that on the trip to Gaylord he pointed out the favorable features of the car to Kangas in an effort to complete the sale.
The party reached Gaylord about 8 o'clock a. m. on March 10, 1938, stopping in front of Murray's poolroom. Petersen entered the poolroom and Kangas and plaintiff visited Mary's place. They left Gaylord about 9:30 a. m. After traveling a short distance toward home, plaintiff went to sleep in the rear seat and remained asleep until the accident occurred.
According to the testimony offered by plaintiff, he had two bottles of beer during the entire evening, these having been consumed in Gaylord, and Petersen, the driver, had one bottle. However, Petersen later pleaded guilty to driving while under the influence of intoxicating liquors, although at the time of the hearing herein he claimed this was done because he believed he would thereby escape a charge of negligent homicide in the event plaintiff should die from the injuries received. He also signed a written statement regarding the circumstances surrounding the accident, wherein he said: "We had gone on a pleasure trip," and that before leaving Grayling all had drunk several bottles of beer. He further stated: "We were just driving the car around so we drove to Gaylord. There was no special reason why we *Page 102 fellows got together," and that he heard no discussion between Kangas and plaintiff during the evening concerning purchase of the car.
The statement of Kangas related the visits of the party to several beer gardens in Grayling before leaving for Gaylord. He also said that he did not know how they happened to go to Gaylord.
Defendants claim that the accident did not arise out of and in the course of the employment of plaintiff. The department concluded that it did, holding that the report of compensable accident filed by defendants was prima facie evidence thereof, citing Reck v. Whittlesberger, 181 Mich. 463 (5 N.C.C.A. 917, Ann. Cas. 1916 C, 771); Ginsberg v. Burroughs Adding MachineCo., 204 Mich. 130, and McCartney v. Wood-Temple Co.,217 Mich. 505.
In the Reck Case we said:
"We think that such reports from the employer, where all sources of information are at his command when the reports are made, and he has had ample opportunity to satisfy himself of the facts, can properly be taken as an admission, and, at least, as prima facie evidence that such accident and injury occurred as reported."
In the Ginsberg Case, we commented on the holding in the ReckCase and Fitzgerald v. Lozier Motor Co., 187 Mich. 660, stating,
"These two cases hold that where the employer or his authorized agent, whose duty it is to make report of accidents, who have the opportunity to investigate, makes a report as to the accident, such report is receivable as an admission, and as an admission may be sufficient to establish a prima facie case. It is unimportant how the employer procures his information. It may all be hearsay. It may come through several hands, from different sources; but when he or his authorized agent reports that *Page 103 the accident happened in a certain way, the report stating that it happened in that way is an admission and receivable as such. These cases go no farther."
The McCartney Case held that the information contained in the report filed by the employer was sufficient to support the finding of the department that the accident arose out of and in the course of the employment.
See, also, Ayling v. City of Detroit, 275 Mich. 338; Kelly v.Ford Motor Co., 280. Mich. 378.
We conclude from an examination and review of our previous holdings that reports of accidents filed by an employer with the department, containing unqualified statements of fact, may be taken as prima facie evidence of such facts therein stated. This does not mean that the mere filing of a report is primafacie evidence of facts and conclusions necessary to support an award if the report contains no statement of fact bearing thereon.
In the instant case, excluding statements irrelevant to the issue, such as the age of the plaintiff, the report contains the following:
"25. Place of accident in detail: Highway US-27 about one mile north of Frederic, Mich.
"26. Describe clearly and definitely how accident occurred: Car sideswiped a truck.
"27. Nature and extent of injury in detail: Broken right leg, broken left arm, cuts and bruises."
There can be no argument with the conclusion that these statements, although prima facie evidence of the facts they relate, are not sufficient to support the finding that the accident arose out of and in the course of plaintiff's employment.
The award must be vacated unless the record contains other competent evidence to support the finding of the department on this issue. *Page 104
From the statement of facts, it may be seen that the evidence conflicts as to whether plaintiff, on the evening in question, attempted to sell Kangas a car, either before or during the trip to Gaylord. We do not weigh the testimony and therefore accept the evidence adduced by plaintiff that he did.
However, from a review of the rest of the record, it is clearly apparent that the primary purpose of the expedition was a pleasure trip for the members of the party which consisted of riding around in plaintiff's demonstrator, listening to the radio, visiting various beer gardens and consuming quantities of alcoholic beverages, finally culminating in a ride to Gaylord. The efforts of plaintiff to sell Kangas a car were casual, incidental to the pleasure trip, and whatever attempt was made to sell the vehicle was obviously subordinate to the main objective of the evening. The trip would not have been made had not plaintiff and his companions determined upon this method of entertainment.
"We do not say that service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause. To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled. * * * The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. * * * If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk." Marks v. Gray, 251 N.Y. 90 (167 N.E. 181). *Page 105
See, also, annotation 78 A.L.R. 684.
We conclude that the foregoing test is applicable to the instant case. Upon application thereof, it is seen that the department was in error in holding that the accident arose out of and in the course of the employment.
The award should be vacated, with costs to defendants.
WIEST, J., concurred with CHANDLER, J.