(dissenting). There is a problem in this case with applying the "clearly erroneous” appellate standard of review. Usually we have a more rigid standard. This case does not come to us through the customary route of a grant of leave from the Workmen’s Compensation Appeal Board. If it had coiné that route our issues would be from a mix of three:
1. Has the appeal board made an error of law or applied an inproper legal standard?
2. Are the findings of fact by the appeal board supported by any reasonable interpretation of the evidence presented?
3. Did the appeal board trip over a jural relationship? (See Deziel v Difco Laboratories, Inc, 394 Mich 466, 475; 232 NW2d 146 (1975), citing 1 Wigmore, Evidence (3d ed), § 1, pp 2-3, entitled "Law and Fact, Distinguished”.)
There is no question but that if this dispute had been heard by the Workmen’s Compensation Appeal Board, and thence to this Court by grant of leave, we would have affirmed had the appeal board found that John Johnson, the employee, was acting in the scope of his employment. The authorities cited by the majority are ample support for such a finding.
If the appeal board had found, however, on these *453facts that the employee was not acting within the scope of his employment at the time of his injury, and his injury was therefore not compensable, would we reverse? I am inclined to answer in the negative. If there was record support for the appeal board to make the findings of fact that the district court made in the case at bar, I think I would be inclined to say, jural relationship notwithstanding, that the findings of fact were supported by some evidence in the record. Here are some of the district court findings:
"The plaintiff is the insurance carrier for Double A Products, of Manchester, Michigan. Double A Products and the Defendant had entered into an agreement wherein for a certain contracted price the Defendant would haul trash from the Double A Plant. The testimony established that on April 14, 1966, one John Johnson was a full time employee of a Dempsey Company in Garden City, Michigan, and worked on a part-time basis for the Defendant as needed. On the date in question, Mr. Johnson testified that he would have gone to his employment in Garden City had his automobile been operating. However, he did instead go from his home in Jackson to the city of Manchester, apparently driving his own automobile. He admitted he wasn’t quite sure how he got there, but other evidence established that his car was on the premises of Double A. He also admitted that he first stopped at a bar and had some alcoholic beverages to drink. He then went to the Double A plant where one of the Defendant’s trucks was left to be loaded with trash, and then subsequently to be removed by the Defendant. One of the Double A employees was apparently loading the truck, and Mr. Johnson gave him some assistance. In the process, Mr. Johnson’s hand was injured.
"As to whether or not on the day in question Mr. Johnson was an employee of Duckham and whether or not he was injured in the course of such employment, the court makes note of the following facts. Mr. John*454son testified that he did not on the day in question report for work to the Duckham company office; he did not punch in; he was not requested to come in for work; it was not his job to go to Double A Company to assist in the loading or removal of the truck from the premises; his job with the Defendant was a part time job, to be worked as needed; his normal job had he been working for the Defendant would have been on a company route truck, not as a driver, but as a garbage pick up man; Mr. Johnson further testified that he was not sure whether at the time he was working for Duckham; Duckham’s testimony was that he was not working for him that day; Mr. Johnson also testified that on the day in question he was working full time for another company; Mr. Johnson’s testimony further establishes that on that day he had been out drinking, and that he just wanted to visit the men at Double A, and did so, and was injured.”
As I perceive them on review the trial court’s findings affirmed by the circuit court were not clearly erroneous. It is a course of employment question which requires a weighing of the evidence and to some extent an assessment of the credibility of the witnesses. Mr. Johnson’s testimony was contradictory.
I am not at all satisfied that Double A Products was a statutory principal within the meaning of MCL 418.171; MSA 17.237(171) because the applicable provision applies where the principal, Double A in this case, hires a contractor, Duckham in this case, to execute "the whole or any part of any work undertaken by the principal”. Double A is not engaged in the business of trash removal or trash compacting, hence it is questionable whether in the first place Aetna Casualty & Surety Company was anything more than a volunteer. We really don’t have a record which develops this issue and we are ill-served by the defendant’s failure to participate in this appeal. But the record is clear that defendant rejected the agreement of the parties to redeem and refused to participate in *455the proceedings which were thereafter simply abandoned as to him. It is not readily apparent that a person, firm or corporation contracting for trash removal becomes a principal as to the employees of the trash remover. The fact of the redemption establishes nothing more than that Double A and its insurer, Aetna, bought peace for $4,000 from a willing claimant who had three fingers traumatically amputated and surgically restored.
There is record support for the "ordinary facts” (see Deziel v Difco Laboratories, Inc, supra) found in the courts below that:
A. Picking up the truck at Double A Products was the job of Philip Duckham and not the job of John Johnson.
B. John Johnson was a part-time employee called in on an as-needed basis.
C. Johnson was employed full-time by an entirely unrelated employer, Dempsey Company, in a different city.
D. Johnson went to visit friends at Double A Products.
E. He said his automobile was disabled but he somehow drove it to Double A Products.
F. Johnson had been imbibing alcoholic beverages in a bar before the accident complained of.
All of the above were perceived as facts below, and the trier of the facts was in the best position to observe the demeanor of the witnesses and assess their credibility. If, therefore, we were reviewing the appeal board on such findings, we would have to find an error of law or a jural relationship out of kilter. I see neither. I find that the trial court’s findings were not clearly erroneous and its conclusion that plaintiff failed to carry its burden of proof also is not clearly erroneous.
I would affirm.