39 N.W.2d 229 | Mich. | 1949
Lead Opinion
Plaintiff's injury did not arise out of and in the course of his employment and for that reason the award should be set aside. The accident occurred after plaintiff's work for his employer was ended for the day. He was on his way home after leaving the place of his work and had no further work or duties to perform for his employer on the day he was injured. This case is analogous to the rule laid down by this Court in Pearce v. Michigan Home Training School,
In the above cases, based on the same question on which decision depends in the instant case, this Court has held that the injury did not arise out of and in the course of the employment.
In Favorite v. Kalamazoo State Hospital,
I agree with Mr. Justice BUSHNELL that in the Pearce Case
(1935), supra, this Court followed the reasoning of theMcNicol's Case,
For that reason this Court does not adopt the test *8
used by the Massachusetts supreme court in the Rogers's Case,supra, namely, that the right to compensation is to be measured by whether the injury was sustained while on the premises of the employer furnished by the employer for the use of its employees. In that case the employee was injured while on such parking lot preparatory to going to work. The Massachusetts statute (see 4 Annotated Laws of Massachusetts, 1948 Cum Supp, ch 152, § 26) allows compensation not only where an employee receives a personal injury arising out of and in the course of his employment, but also allows compensation for a personal injury "arising out of an ordinary risk of the street" while engaged "in the business affairs or undertakings of his employer;" and it expressly provides for compensation while using a motor vehicle in the performance of work "in connection with" the business affairs of his employer. In the Rogers's Case the Massachusetts supreme court held that an employee was entitled to compensation who had received a personal injury on a parking lot owned and provided by the employer for the use of its employees and while using a motor vehicle in going to or from work; that he was engaged in performance of work in connection with the business affairs or undertakings of his employer. Under the statute law of that State, the test followed by the Massachusetts supreme court is whether the employee at the time of his injury was performing some act "pertaining" to, or "incidental" to, his employment.Nagle's Case,
The liberal provisions of the Massachusetts statute above referred to were added to the Massachusetts *9 workmen's compensation law in 1927 (Massachusetts Acts and Resolves 1927, ch 309, § 3; Acts and Resolves 1930, ch 205). Prior to that time the Massachusetts supreme court adhered to the rule of the McNicol's Case, supra, still followed by this Court. In the McNicol's Case, decided September 12, 1913, that court said:
"In order that compensation may be due the injury must both arise out of and also be received in the course of the employment. Neither alone is enough.
"It is not easy nor necessary to the determination of the case at bar to give a comprehensive definition of these words which shall accurately include all cases embraced within the act and with precision exclude those outside its terms. It is sufficient to say that an injury is received `in the course of' the employment when it comes while the workman is doing the duty which he is employed to perform. It `arises out of' the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises `out of' the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in *10 a risk connected with the employment, and to have flowed from that source as a rational consequence."
The test thus applied in Massachusetts is still followed in this State. The McNicol's Case, supra, was quoted and relied upon by this Court in 1925 in Pearce v. Michigan Home Training School, supra. The Court said:
"Defendants insist that the death of Mrs. Burke did not arise out of or in the course of her employment. Other points are also raised, but we need not consider them as it is clear upon this record that her unfortunate death did not occur in the course of her employment. She had finished her work for the week, had left the premises of her employer and was at least a quarter of a mile away; she was in the performance of no duty to her employer but upon a mission entirely of her own; she was mistress of her own time and could go and come as she pleased. We have followed and quoted the rule laid down by the supreme court of Massachusetts in McNicol's Case,
In Haggar v. Tanis, supra, this Court set aside an award of compensation to an employee whose duties were to care for the furnaces located in 3 separate buildings, all of which were located on the east side of South Burdick street in Kalamazoo. While the employee's working hours were from 6 a.m. to 9 or 10 p.m., he always went to a restaurant for his meals. During the hours of his employment he was injured on Burdick street while crossing from the west to the east side after going to a restaurant for his lunch. Mr. Justice NORTH, writing for the Court, discussing and quoting from many decisions of this Court, in a unanimous opinion concluded as follows (syllabi):
"To arise `out of' the employment the injury sustained must have a causal connection with the work *11 to be performed; must be one which follows as a natural incident to the employment, be connected with it, and not the result of a risk disassociated therefrom (CL 1929, § 8417, as amended by PA 1943, No 245*).
"An injury is received `in the course of' employment, as that term is used in the workmen's compensation act, when it comes while the workman is doing the duty which he is employed to perform (CL 1929, § 8417, as amended by PA 1943, No 245*).
"Under the test that an injury, to be compensable under the workmen's compensation act, must have arisen out of and in the course of the employment, an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment would not be compensable (CL 1929, § 8417, as amended by PA 1943, No 245*).
"Plaintiff, a fireman for owner of three buildings some four blocks apart but all located on the east side of a street, was not entitled to workmen's compensation by reason of such employment for injuries received while returning easterly across such street after eating his evening meal since his injury did not arise out of nor was it in the course of his employment (CL 1929, § 8417, as amended by PA 1943, No 245*)."
In 1941, Mr. Justice BUSHNELL, writing for the Court inAppleford v. Kimmel, supra (
"No hard and fast rule can be laid down to cover all such situations. While it is generally held that injuries to an employee, incurred while going to and leaving the place of employment, are not compensable, exceptions arise because of the circumstances of the particular case. Morey v. City of BattleCreek,
"The facts presented in this record sustain the finding of the department of labor and industry that plaintiff's injury aroseout of and in the course of his employment."
The test followed by the commission in the instant case, under the Massachusetts rule, and which we are asked to adopt, was whether the employee was injured while on property owned and furnished by his employer as an "incident" of the employment for the benefit of the employee. In this State the test that has been followed is whether the employee, regardless of where his injury arose, either on or off *13
the premises of his employer, was injured while within the ambit of his employment, and whether there was a causal connection between the injury and the employment. The primary test under our statute is not where the injury occurred, but whether his injury arose out of and in the course of his employment. An employee may not be entitled to compensation although his injury arose while on the premises of his employer which were furnished by the employer for the use of the employee. In Clark
v. Chrysler Corporation,
We have also on many occasions allowed or upheld an award of compensation when the injury occurred within the ambit of the employment, although the employee was injured while not on the premises of the employer. See Mann v. Detroit Board ofEducation,
The fundamental test in this State is that the injury, to be compensable, must have arisen out of and in the course of the employment — there must be some causal connection between the injury and the employment more than the mere fact that the employee was on premises of the employer which had been furnished by the employer for the use and benefit of the employee as an "incident" of the employment. That is not enough.
Reversed and remanded for entry of an order denying compensation.
SHARPE, C.J., and REID, NORTH, and DETHMERS, JJ., concurred with BOYLES, J.
Dissenting Opinion
A few minutes after midnight on February 5, 1947, plaintiff Mike Daniel finished his work, punched the time clock, and left his place of employment at defendant's plant No. 5 on Clay avenue in the city of Detroit. He crossed *3 the street and entered a parking lot, which was provided by defendant for the convenience and exclusive use of those employed in its tool and die division. While walking on this lot towards his automobile, Daniel slipped "into a hole" and fell to the ground. He was given first-aid treatment at the plant, and the next day an X-ray examination disclosed "a fracture of the left clavicle overriding a loose fragment." Because this was considered by his employer to be an outside injury, he was advised to secure treatment from his own physician.
An award of the deputy commissioner was sustained on review by the commission in an opinion which said in part:
"The situation is somewhat analogous to that in Favorite v.Kalamazoo State Hospital,
"As a matter of law, we can see no difference in the legal principle here involved from that decided in Favorite v.Kalamazoo State Hospital, supra. In our opinion, the decision in the Favorite Case is controlling."
Defendant says the sole question is:
"May an employer be required to pay workmen's compensation benefits to an employee who is injured in a fall on a parking lot which is operated gratuitously *4 by the employer for the sole benefit of its employees, when the employee had terminated his employment for the night and crossed a public highway to reach the parking lot and obtain his automobile for the purpose of driving to his home for the night?"
In support of its position it argues that the authorities cited by the commission are distinguishable, and that among others,Pearce v. Michigan Home Training School,
In the Pearce Case this Court followed the reasoning of Chief Justice Rugg in McNicol's Case,
"The crucial findings of subsidiary facts upon which this case must be decided are these. The employee worked in a hat factory. He was accustomed to come to work in an automobile of a fellow employee which would be parked in a `parking lot' owned and `furnished' by the employer where the employer permitted its employees to park. At the time of the injury the automobile was parked as usual in the `parking lot.' The employee left it to go to work, and while still on the lot and `going down an incline,' he fell and broke an ankle. `It was no part of the duty of the employee to use an automobile to reach his work.' The furnishing of the `parking lot' was `no part of the contract of employment.' Although the board did not expressly find that this lot was opposite the employer's factory, *5 the uncontradicted evidence both of the employee and of the insurer was to that effect, and that fact seems to have been assumed. It was necessary, however, to walk a short distance down the street to the plant entrance.
"These facts require as matter of law a decree for the employee. Although the employee was not obliged to come to work in an automobile, and the employer was not obliged by contract to furnish the `parking lot,' yet it is plain that it did furnish the lot as an incident of the employment, and that the employee, while actually on his employer's premises and on his way to the place where his day's work was to be performed by a route which he was permitted and expected to take, fell and was injured. It is of no consequence that a street intervened between the part of the employer's premises where the employee fell and the part where he was to work. The `parking lot' was used as an adjunct to the factory. The case stands just as it would if the automobile had been parked on the same lot on which the factory building stood and the employee had fallen while walking from the automobile to the factory door. The injury arose out of and in the course of the employment."
See, also, authorities therein cited.
It is unnecessary to add to the length of this opinion by distinguishing the factual situations in the Michigan cases cited from those in the instant case. The reasoning of the Massachusetts case is inescapable, and when applied to the facts in the instant case, requires affirmation of the commission's order. It conforms to the tests laid down in Haggar v. Tanis,supra.
The award should be affirmed, with costs to appellee.
CARR, J., concurred with BUSHNELL, J.
BUTZEL, J., concurred in the result. *6