Defendants appeal from a judgment of the Court of Appeals which reversed a decision of the Workmen’s Compensation Appeal Board.
1. Whether plaintiffs injury arose out of and in the course of his employment with defendant.
2. Whether an agricultural worker is entitled to weekly benefits for a work-related injury sustained prior to our decision in
Gallegos v Glaser Crandell Co,
The Court of Appeals decided these issues in the affirmative. We affirm.
*140 Plaintiff drove a truck for defendant Lloyd Hammond Produce Farms, delivering produce to cities in southern Michigan and Indiana. His weekly wage of $84.40 consisted of piecework and hourly earnings. On March 1, 1972, plaintiff had driven his employer’s truck to Battle Creek, Kalamazoo, Jackson, and Detroit delivering potatoes. After making his last delivery in Detroit at 5 or 5:30 in the afternoon, plaintiff began his return trip on I-96 to defendant’s farm in East Lansing. Plaintiff turned north on M-52 from 1-96. On M-52, plaintiff’s truck skidded on a patch of ice and rolled over, causing personal injuries to plaintiff.
A hearing was held in March 1973, and the referee awarded wage benefits of $56.53 per week from March 2, 1972 to May 4, 1972 and medical expenses. The Workmen’s Compensation Appeal Board, in a three-to-two decision, reversed on the award of wage benefits, deciding against retroactive application of Gallegos v Glaser Crandell Co, supra. However, the board unanimously agreed that plaintiff’s injuries arose out of and in the course of his employment and affirmed the award of medical expenses. Defendant Lloyd Hammond Produce Farms had the agricultural medical coverage required by MCLA 418.115(e); MSA 17.237(115)(e). The Court of Appeals affirmed the award of medical expenses and reinstated the referee’s award of weekly wage benefits.
I
Defendants argue that the injuries sustained by plaintiff did not arise out of and in the course of his employment and, therefore, are not in any way compensable. It is clear from the record that on plaintiff’s return trip from Detroit to his employ *141 er’s farm in East Lansing on March 1, 1972, he turned north on M-52 from 1-96 for the purpose of stopping by his sister’s home, where he had been staying, to tell her that he would be home that night and to inform his brother-in-law that he would need a ride home from the farm. Plaintiffs sister lived near the intersection of M-52 and M-78, and plaintiff intended to proceed southwest on M-78 to his employer’s farm in East Lansing after he had made arrangements for a ride home from work. However, the accident happened on M-52 before plaintiff reached his sister’s house. Ordinarily, plaintiff would have continued on 1-96 past M-52 on a trip from Detroit to his employer’s farm. The route taken by plaintiff on the day of the accident would have added about ten miles to the total trip, and defendants claim that this deviation was such a departure from his employment as to be a bar to plaintiffs workmen’s compensation claim.
In
Thomas v Certified Refrigeration, Inc,
*142 "We do not suggest that every authorized use of a company-owned vehicle or deviation from a business route will fall within this triad of cases. An authorized but totally private excursion such as using the company vehicle for weekend personal errands certainly is not covered because such trips lack a dual purpose required by Burchett or a 'sufficient nexus between the employment and the injury’ required by Nemeth. If a personal business detour is so great that the deviation dwarfs the business portion of the trip, it no longer can be said that it is 'a circumstance of [the] employment’ as required by Howard. This Court will not attempt to fix any formula, but in any case the nature of the deviation must be balanced against the clarity of authorization and effect of the activity on the employment relationship or the interests of the employer.”392 Mich 623 , 634-635.
In the instant case, the Workmen’s Compensation Appeal Board correctly found that plaintiffs alternative route on the day of his injuries constituted a "slight deviation”. Also, plaintiff testified that his sister’s telephone was temporarily out of order and that the only way to tell her of his whereabouts and to make arrangements for a ride home from work was to see her personally. On the previous evening plaintiff had worked too late to get a ride home and had to spend the night in his employer’s truck. In view of these circumstances, there was a sufficient nexus between plaintiffs employment and his injuries to warrant compensation.
Defendants argue that
Thomas
is not applicable in the instant case since there is no evidence that plaintiffs employer authorized plaintiffs deviation for personal business.
Thomas
avoided ruling on the "further issue whether injury is compensable which occurs off the employer’s premises during a personal activity unapproved by the employer but
*143
where the activity is reasonably incidental to the employment relationship”.
In
Thomas,
this Court suggested the extension of the rule in
Crilly v Ballou,
" 'An employee is not an automaton, and, even when he is highly efficient, he will to some extent deviate from the uninterrupted performance of his work. Such deviation, if it be considered minor in the light of the particular time, place and circumstance, is realistically viewed by the employer and the employee as a normal incidence of the employment relation and ought not in this day be viewed as legally breaching the course thereof. Fulfillment of the high purposes of our socially important and ever broadening workmen’s compensation act suggests this approach and nothing in the statutory terms dictates any narrower position.’ ”353 Mich 303 , 314.
In view of the foregoing, we affirm the holding of *144 the Court of Appeals that plaintiffs injury arose out of and in the course of his employment with defendant.
II
Defendants challenge the award of wage benefits to plaintiff on the basis of MCLA 418.115(d); MSA 17.237(115)(d). Defendants maintain that since plaintiff’s accident preceded this Court’s holding in Gallegos v Glaser Crandell Co, supra, that decision is not applicable to the instant case. Gallegos held that MCLA 418.115(d); MSA 17.237(115)(d) was unconstitutional because it excluded certain agricultural employees from the coverage of the Michigan Worker’s Disability Compensation Act of 1969, thus denying them equal protection of the laws. The Workmen’s Compensation Appeal Board agreed with defendants’ argument and gave Gallegos prospective application. Plaintiff urges that Gallegos be given retroactive application, arguing that the statutory exclusion was void ab initio. The Court of Appeals consciously avoided the application of the void ab initio theory to the agricultural exclusion, but found that the Workmen’s Compensation Appeal Board’s application of the exclusion violated plaintiffs right to equal protection and reversed the board’s denial of wage benefits.
It is a general rule of statutory interpretation that an unconstitutional statute is void ab initio. This principle is stated in 16 Am Jur 2d, Constitutional Law, § 177, pp 402-403, as follows:
"The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time *145 of its enactment, and not merely from the date of the decision so branding it, an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed.”
That this rule has been consistently followed in Michigan there can be no doubt. See
Adsit v Secretary of State,
Briggs v Campbell, Wyant & Cannon Foundry Co, supra, involved the question of whether an amendatory state statute could apply retroactively in order to cure defects of a statute previously declared unconstitutional. In discussing this issue, the Briggs Court held that the prior unconstitutional statute was void from the date of its passage and, therefore, could not be cured retroactively by a subsequent statutory amendment, unless the contrary clearly appeared from the context of the statute itself.
In
Horrigan v Klock, supra,
the Court of Appeals followed the rule that an unconstitutional statute is void
ab initio,
which was reaffirmed in
Briggs,
in holding that
Maki v East Tawas,
Defendants claim that
Williams v Detroit,
Defendants rely on
Lemon v Kurtzman,
Defendants argue that in view of the Lemon decision, policy considerations dictate the prospective application of Gallegos. It is defendants’ contention that the retroactive application of Gallegos would place a substantial financial burden upon small farmers and insurance companies who had justifiably relied upon the agricultural exclusion contained in MCLA 418.115(d); MSA 17.237(115)(d), *147 thereby resulting in a denial of due process to these groups.
We are not unmindful that certain factual circumstances might warrant the retroactive application of an unconstitutional statute. In
Dearborn Fire Fighters Union Local No 412, IAFF v Dearborn,
"In addition to the almost insurmountable administrative, political, and judicial problems that would be created by any attempt to unravel and renegotiate the 'contracts’ imposed by police and fire department arbitration panels, application of this decision retroactively would cause hardship on employees and employers and would not be constructive. Michigan labor organizations, their members and municipalities have justifiably relied on a presumptively valid statute.”394 Mich 229 , 271-272.
However, in the instant case, considerations of justice and practicality do not warrant the limited effect of the prospective application of
Gallegos.
Indeed, it would be patently unfair to deny plaintiff weekly benefits for injuries sustained in an accident occurring prior to the time the statutory exclusion was declared unconstitutional, but subsequent to the time the
Gallegos
plaintiffs were
*148
injured. In
Gallegos,
it was said that "There is no basis for distinguishing the work of a laborer who drives a truck at a factory from a laborer who drives one on the farm * * * ”,
The decision of the Court of Appeals is affirmed, with costs to plaintiff.
(to reverse). It is agreed that plaintiff’s injury arose out of and in the course of his employment. It occurred prior to this Court’s ruling unconstitutional those portions of the Workmen’s Compensation Act of 1969 which excepted piecework employees and those not employed 35 hours a week for 13 consecutive weeks. 1
The core question of the retroactivity of
Gallegos
*149
v Glaser Crandell Co,
However, the consequences reach farther than Mr. Stanton. Precedent is likely to remain in Michigan jurisprudence at least long enough for further interpretation in the light of different or similar facts, and therein lies the problem.
What is mandatory today may be forbidden tomorrow by judicial fiat.
Legal history assures us that our law is not static. It is a living reflection of changing societal expectations. Historically, the law evolved through the application of fundamental concepts to a changing world.
In a comparatively recent and unusually intense surge of judicial activism, we have seen emerge changing attitudes regarding the role of the judiciary in our governmental scheme. The increased judicial activism, perhaps unavoidably, often reflects value judgments or impatience with the other branches of government.
Consequently, greater numbers of statutes and rules of common law, which for years may have been accepted and followed by all concerned, have been declared unconstitutional. Also, newly perceived "rights” have led to continuous reassessments of old law and practices to the end that trial judges and others concerned with the administration of justice as well as the lay citizen can place little reliance upon the stability of our laws.
The purpose of this assessment is not to declare rapid movement of the law either good or bad, but to pose a problem to be solved.
This case illustrates the dilemma which arises when a citizen, individually or corporately, relies upon a statute valid on its face — only later to have *150 the statute declared unconstitutional to the citizen’s financial (or personal) disadvantage.
Does the citizen’s (and his attorney’s) reliance upon a law later declared to be unconstitutional deny him due process of law or fundamental fairness by reaching back in time and taking his property through judicial action in which he had no part or notice? On the other hand, is one who is injured before a court’s decision of unconstitutionality, but who brings his case after that decision, to be denied the benefits of the ruling? Would he be denied equal protection of the law? So far as what is "right” and what is "wrong”, a dilemma is presented.
Also, a trial judge (or administrative agency) is mandated to follow the law. Precedent set by this Court binds the lower courts (and agencies). The judge correctly applies the law on day A, but the law is eradicated on day X. How can we surmount the resultant snowballing problems?
I
Plaintiff, a piecework and hourly employee of defendant farmer, was injured in a one-car accident on March 1, 1972. In March, 1973, a referee awarded medical expenses and wage benefits of $56.53 per week for the period of March 2 to May 4, 1972. The Workmen’s Compensation Appeal Board affirmed the referee’s granting of medical expenses (defendant farmer carried agricultural medical coverage 2 ) but reversed the award of wage benefits, saying that Gallegos, decided December 21, 1972, applied to Mr. Gallegos and all similar persons injured after the date of decision. The Court of Appeals affirmed WCAB’s award of medi *151 cal expenses and reinstated the referee’s award of weekly wage benefits.
II
Justice Fitzgerald states:
"It is a general rule of statutory interpretation that an unconstitutional statute is void ab initio”, and
"That this rule has been consistently followed in Michigan there can be no doubt.”
I submit that the "general rule” is not today strictly applied nor has the rule "been consistently followed in Michigan”
(e.g., People v Fields [On Rehearing],
It is agreed that as a matter of pure logic, if we find a statute to be unconstitutional we find that it is void and therefore "never was” (even if it had been followed for 50 or more years).
However, for reasons expressed in the "prologue” to this opinion — and for many other reasons — the Justice’s later observation is more realistic:
"We are not unmindful that certain factual circumstances might warrant the retroactive application of an unconstitutional statute.”
In
Lemon v Kurtzman,
It is difficult to reconcile "the constitutional interests reflected in a new rule of law with reliance interests founded upon the old”. The Court said it had abandoned the void ab initio theory because "statutory or even judge-made rules of law are hard facts on which people must rely in making decisions and in shaping their conduct”.
The Court said Lemon concerned "the appropriate scope of federal equitable remedies”. In such cases "reliance interests weigh heavily”. The first Lemon decision was not clearly predictable. It could not be said that the schools "acted in bad faith or that they relied on a plainly unlawful statute”. The Court’s review was made "in light of the general principle that, absent contrary direction, state officials and those with whom they deal are entitled to rely on a presumptively valid state statute enacted in good faith and by no means plainly unlawful”.
Ill
How does this apply to Hammond Produce Farms? Legislative history and court decisions indicate that our decision in Gallegos was not clearly predictable. The statute was not plainly unlawful.
1912 (1st Ex Sess) PA 10 was Michigan’s first legislation "providing for compensation of workmen for industrial injuries upon the basis of trade risks relating to the industry”.
Mackin v DetroitTimkin Axle Co,
The employee in
Shafer v Parke, Davis & Co,
The defendant in
Roush v Heffelbower,
In
Carroll v General Necessities Corp,
The injured worker had been "transferred to the *154 barn in question solely to look after defendant’s horses”. He "did not work on the farm or have anything whatever to do with it”. He was injured by a horse and was awarded compensation over the corporation’s objection that the worker was a farm laborer.
In affirming, the Court distinguished other cases where employees were "engaged in some form of work upon a farm which was necessary to be done for its general operation”. In Carroll, "the defendant was not engaged in farming”. The plaintiff’s work did not necessarily make him a farm laborer.
In
Hammons v Franzblau,
The latter language was tested in
Gallegos v Glaser Crandell Co,
The Court of Appeals noted that our Court had upheld legislative classifications in
Gauthier v Campbell, Wyant & Cannon Foundry Co,
Our Court reversed at
The three members of WCAB who said Gallegos was not retroactive recognized "the administrative problems involved in enforcing liability against a *156 class (Michigan farm employers) who had placed substantial reliance on legislative enactments that precluded their purchase of workmen’s compensation insurance”. Making Gallegos retroactive "would surely give rise to a question of due process”.
The dissenters said it "is a fundamental principle that an unconstitutional statute is void ab initioSuch legislation "can neither create nor deprive anyone of any legal rights; and reliance, detrimental or otherwise, upon the provisions * * * can have no saving grace”. The dissenters reviewed cases where we declared statutes void ab initio and said they "readily explain the Court’s silence with regard to that issue in Gallegos”
The Court of Appeals sidestepped the issue saying the "void ab initio theory * * * is an [oversimplification] that we need not apply here”. It "disregards the importance that changing factual contexts play in constitutional adjudication”.
The panel held that applying the statute "to an employee in plaintiff’s position violates his rights to equal protection”.
We have. a predicament. The defendant employer relied on a statute which was not clearly invalid. It could justifiably have relied on our previous decisions. It could not predict that we would reverse our prior position and void the statute. Based upon the statute and judicial precedent, any lawyer consulted would have had ample reason to advise a farmer that a piecework or part time employee did not require workmen’s compensation. The small farmer could be placed in dire financial straits by retroactive application of Gallegos. Because in workmen’s compensation there is no effective statute of limitations (this was a 1967 injury), similarly uninsured farmers could find themselves personally liable years from now.
*157 However, the plaintiff belongs to a class which we have said in this case would be denied equal protection of the laws if the statute was enforced. He properly presented his claim. It was adjudicated after Gallegos. Justice Fitzgerald says it "would be patently unfair” to deny him benefits.
The competing interests are quite evenly weighted if we look only to this case. (We do not know how many others will be affected.)
I would find that defendant’s reliance upon the statute and caselaw was justified. Plaintiff knew or should have known that by law he was not covered by workmen’s compensation at the time of the injury. Plaintiff’s attorney suggests that the Legislature assist the small farmers who relied to their detriment on § 115(d) of the statute. This is not a solution upon which the Court can rely.
The solution lies at our doorstep. I would use it to bring some orderliness and dependability in the legislative and judicial roles which fall upon statutes as a result of our system of checks and balances.
Facts will dictate different dispositions, but when feasible, as here, I would urge applicability of an opinion to the case decided and all like causes arising thereafter. All then are on notice and can be expected to abide by the decision.
In any case, the Court should hereafter carefully consider the possible retroactivity of each suitable decision and plainly state the determined application.
I would reverse the Court of Appeals and affirm the WCAB.
Notes
“All agricultural employers of 3 or more regular employees paid hourly wages or salaries, and not paid on a piecework basis, who are employed 35 or more hours per week by that same employer for 13 or more consecutive weeks during the preceding 52 weeks. Coverage shall apply only to such regularly employed employees. The average weekly wage for such an employee shall be deemed to be the weeks worked in agricultural employment divided into the total wages which the employee has earned from all agricultural occupations during the 12 calendar months immediately preceding the injury, and no other definition pertaining to average weekly wage shall be applicable.”
MCLA 418.115(e); MSA 17.237(115)(e).