*1 1970] v. Awkerman.
WHETRO AWKERMAN.
EMERY HUGE COMPANY.
Opinion of the Court. Compensation Compensability — — — 1. Workmen’s Act of God Proximate Cause. tornado, A earthquake like a flood, bolt of or an God, phrase is an act if employment, and “out of” the compensation act, necessarily the workmen’s entails the proximate notion causality, no received because compensable 1948, 412.1, act of should (CL God be § 1954, 175). amended PA No Compensation Employment— 2. Workmen’s —Proximate Cause — Injury Compensability—Defenses—Act — of God. A relationship proximate causality between longer necessary is no compensability, to establish an act of longer regarded God is no as a defense to a elaim for injury (CL 1948, 421.1, work-connected as amended § 175). PA No Compensation Employer — — — — 3. Workmen’s Torts Fault Employee — Statutes. Concept of injuries tort pay law that one should not to another unless he is at fault the law of inconsistent with compensation (CL 1948, 421.1, as amended § 175). Pa No Compensation — Purpose — — 4. Workmen’s Statutes Benefits — Burden. purpose provide the workmen’s act is to efficient, dignified, most and certain form financial and [3, 4,13] [9] [1, 2, [6-8,10-12,14,15] 20 Am Jur seq. 58 Am 58 Am References 2d, Jur, Jur, Courts Workmen’s Workmen’s Am Jur, § Compensation Points Compensation Workmen’s Headnotes Compensation § 2.§ 198. § 209 et of work-connected for victims medical benefits appropriate payments to most of those allocate the burden (CL 1948, product payment, the consumer of source 175). No 412.1, as PA amended § *2 Injury Employ- — — Compensation — Benefits 5. Workmen’s —ment Proximate Cause. employment paid is compensation be where Workmen’s should employment injury though the was even the occasion of an 412.1, injury (CL 1948, as proximate of not the cause § 1954, 175). amended PA No Employment. Compensation God—Out of 6. of Workmen’s —Act destroyed the employee injured An when a tornado who was working employer his and the he was for residence where in which employee of an killed when the motel wife who was his staying trip on a business he was while destroyed workmen’s by a are entitled to recover tornado compensation injuries employment was for their because the injuries of injury, arising out the occasion for the the 1948, 412.1, employment (CL in the of their course § 175). amended PA No Employment Compensation of 7. Workmen’s —Act of God—Out —Prospective Application. employee in the course Decision suffered an that catastrophe “act or of employment of his from a natural meaning employment of God” arose “out of” the within the applied the eases act will be the workmen’s the and to all claims which were the occasion of decision opinion. arising filing of after the date Separate Opinion.
Black, Employment Compensation —Out of 8. Workmen’s —Course of Employment Injury—Act Compensability. — of God— judicial a work- this state has been that The settled view in engaged employment, time an at man course of injury sustained, compensable is does not receive otherwise immediately injury employment an where the “out his of” God, injury hence is an causal that act force of of compensable (GLS 412.1). is not § Awkerman. Appeal Decisis. and Error —Stare Courts — 9. judicial usually policy because most the wise Stare decisis applicable law important rule that it is more matters of right. it than that be settled be settled op Employment op Compensation —Out Workmen’s —Course op Employment God —Statutes. —Act engaged in injured by an act God while A who is workman assigned doing to him employment, the work the course of designated place circumstances under employ- injury arising employer, “out receives an of” meaning compensation act the workmen’s ment within the 412.1). fCLS § op Employment Compensation Workmen’s —Decisional —Out Overruling—Prospective Application. Law — overruling long-settled com- case law Decision pensation by holding in the course received operation “out God” arises an “act from meaning com- the workmen’s within the of" wholly operation pensation given prospective act be should applied the occasion and not cases which were be to the the decision. *3 Employment op op Compensation Workmen’s 12. —Act God —Out —Prospective Application. employee in the course Decision that suffered catastrophe “act or his natural of of from meaning the arose “out the within God” of of” compensation applied to the cases workmen’s act will be to all claims which were occasion the decision and for of filing arising opinion. the date after of
Dissenting Opinion. Kelly, J., Brennan, T. E. and JJ. C. Dethmers Compensation Statutes—Purpose—Liability— 13. Workmen’s — Fault. society’s expression The workmen’s law is employers responsibility moral to the work- and consumers men are industrial and whose health and lives to sacrificed progress production, commercial and its to function injuries upon place the the in- burden industrial financial ultimately spreading upon themselves, con- dustries the cost sumers. op Employment op Compensation —Out 14. Workmen's —Course Employment —Statutes—Construction. used “arising “in the course out terms of” of” things, and not mean compensation act workmen’s different his “in the course every a workman received of” employment. “out employment arises of” op Employment op Compensation —Out —Course 15. Workmen’s Employment —Statutes—Construction. employ- his Injuries in the course a workman received lightning, flood, agencies tor- as or such ment from forces by-product the indus- jealous not a nadoes, are or wives any sense moral revolution, are nor trial enjoy of, by, profit responsibility who those fruits society, not be com- and should our modern industrialized arising pensable “out of” Appeals, Appeal Hol- Division from Court JJ., B. Burns, E. and H. Gillis and brook, J.,P. Appeal Compensation Board. affirming Workmen’s (Calendar April No. Docket 11,1969. Submitted 52,023.) March 12, Decided No. App affirmed. presented claim his
Carl against em- compensation ployer, Awkerman, B. Louva Michigan Fund. Accident State and the Appeal Compensation affirmed Board Workmen’s appealed plaintiff. Defendant the referee’s award ap- Appeals. Defendant Affirmed. Court of to the peals. Affirmed. (Wallson Knack, G. & Judd
Warner, Norcross plaintiff. counsel), *4 Hammer, Nobach S for defendant.
Munroe, Appeal Compensation Appeal from Workmen’s application delayed leave to for Plaintiff’s Board. v. Awkerman. Whetro Opinion op the Court. prior Supreme appeal decision to to Court April Appeals granted. 11, Submitted Court 1969. 52,119.) (Calendar No. No. De- Docket 12, 12, March cided presented Emery for workmen’s a claim
Helen B. Henry husband, for the death her Huge Company, employer, Emery, against his E. Company of North Amer- insurer, its Insurance Compensation Appeal Board ica. The Workmen’s compensation, med- referee’s award of affirmed the expenses. hospital, ap- and burial Defendants ical, Appeals. appeal pealed Leave to to the Court Supreme granted prior to decision Court Appeals. Affirmed. the Court (William Farr, & Hammond Hillman, Baxter counsel), plaintiff. for (Edward Perkins & Buchanan Cholette, Wells, D. counsel), for defendants. T. G. J. These cases were consolidated Kavanagh, pursuant September 5, to our order wherein granted appeal prior we leave to to decision Appeals Emery Huge the case of Court Company (1968), They argued Mich 774. were April, together in our term. question,
They damages on turn the same for the for which was awarded in Sunday, Palm each case were caused parts tornadoes which devastated of southern Michi- gan. injured
Carl when the tornado de- stroyed working wherein residence he was seeks reimbursement his med- expenses. Henry Emery ical E. was killed when the *5 Mich op Opinion the Court. staying on a business while he was in which motel destroyed by trip tornado, was for his compensation for his death. widow seeks and his hearing found that referee case the In each employee’s injury course of of and in the arose out by employment. affirmed was The award his appeal peals Ap- by the Court in each case and board case. in the Whetro defendant-appellants their cases base both are “acts of that tornadoes the assertion defense on injuries which are caused of nature and or acts God” employment by “out of” the do not arise them compensable the workman’s not under hence are compensation reason act.1 For this maintain erroneously decided as matter cases were that the should be set aside. of law and awards appellants in- in each case maintain that the jury “out of” because not arise did phrase, as it is used in the refers to a act, put event which connection between the causal which caused the and the motion the forces under which it is re- itself or the conditions work performed. quired to be caretaker-gardner
Employment as a or salesman, they argue, include incidents does not tornadoes as path work, and the conditions by the not the tornado, determined Appellants Michigan cite a series of in decisions volving injury by lightning: v. Lake Klawinski (1915), 643; & M. S. R. Co. 185 Mich Thier v. Shore Country 355; Nelson v. Widdifield 479; Mich Kroon v. Club Detroit County Road Kalamazoo Commission denied, in which and as that a is like in that it acts sert tornado (1st Sess), 10, pt 2, §1, PA 1PA 1912 Ex No as amended (CL 1948, (Stat §412.1), No 245 PA No 175 §17.151). Ann 1968 Rev Awkerman. op the Court. leaving and the untouched capriciously, its victims “lightning in all these The decisions side. side ground that the on the denied cases” injury employment be- of” the not arise “out did expose workman did not cause more hazardous situa- any risk or to a increased in the area. others faced tion than *6 distinguish Appeals be- was able to of The Court lightning as a caus- bolt of a tornado and a tween affirming injury decision and base its force of ative reasoning of the on the for Carl Whetro the award supreme court in Caswell’s case Massachusetts (26 328), wherein re- NE2d Mass injuries covery received when a allowed was employer’s factory down was blown of the brick wall during This “contact with hurricane. on a workmen injury requirement premises” that met the employment in the mind of the “out of” arise Appeals. of Court accept drawn the distinction be- to
We are unable lightning when viewed of tween tornado and bolt a injury. ait, tornado, see an As we cause of earthquake or or an than a bolt no less phrase “out of” if the “act of God” and flood is an compensation employment act in the workmen’s proximate necessarily causal- notion of entails the injury of God” ity, of an “act received because no compensable. should be necessary longer it is no But we are satisfied proximate causality relationship a to establish injury order to es- an between longer Accordingly compensability. no we tablish tornado, a regard it be whether an “act God” earthquake, claim lightning, to a or floodas a defense injury. retains a defense Such for work-connected not should an idea that too much at fault. pay somehow unless he is Mich op the Court. concept from the law of tort is This inconsistent compensation. with the law workmen’s purpose act as set forth promote people the welfare of the in its title is to liability employers Michigan relating to the employees. sustained their or death provide legislative policy to financial is medical benefits to the victims injuries work-connected dignified, and certain efficient, form. payments burden of such The act allocates the appropriate payment, the most source of the con- product.2 sumer of the nothing
Fault has to do with com- whether not pensation payable. impact The economic on an injured family workman and his is the same whether employer’s caused fault or otherwise. Michigan today longer hold the law in
We
no
requires
proximately
of a
the establishment
causal
connection between the
and the
compensation.
to entitle a claimant to
The cases
*7
recovery
which have
risks,3
allowed
street
in
on-the-premises
risks,4
creased
and
accidents5 were
proximate
made without consideration of the
causal
School District No. 1
Detroit B. Co.
Le Vasseur
in Bisdom Kerbrat
there
2.30.
Mich
462;
Widman
County
Detroit Shade Tree
erally.
Grocery
4 E.g.
[3]
5 E.g. Brink
[2]
City
The most
This is the
445;
Arnested
continually expanded through
Boad Commission
Arnested MeNicholas
See
v.
&
v.
Clifton
(1949),
Baking Company Murray Corporation
Larson,
Detroit
significant
v.
v. W. Wells Lumber Co.
(1930),
v.
purpose
v.
Allen Electric
v.
McNicholas
Co.
(1930),
Workman’s
Kroger
(1934),
of
[251]
(1916),
of workmen’s
of
Portage Township
(1935),
Mich
the
251 Mich
Grocery
266 Mich
(1923),
(1923),
connection brought injury. They the in Michi have law and the today point gan it can said that if to the where be injury, is the occasion the even the proximate though not the should cause, paid. be par- Michigan development6 a law is
Such England development of the law in and alleled jurisdictions which served Massachusetts —the two original legislative Michigan’s draft- model ing judicial workmen’s com- construction of the pensation act. Hopkins Michigan early Michigan
The
case
Sugar
imported
(1915),
“causal-
Co.
injury
concept
requirement
ity”
into the
employment.
of”
The court
must arise “out
interpretation
English case of
from the
drew this
Fitzgerald
(1908) 2 KB
v. Clark & Sons
(
The Massachusetts cases] they [recent disclose 344: “We think that development which is of a consistent course expressed, departure for ex- from the earlier view * * * ample Meed The in McNicol’s case. employment. arise of the nature not out * * * question is whether brought fact him in contact with the risk ” his death.’ caused supra, English if Powell, held that court, place required employee at the the work be of” his the accident arose “out *8 Appendix “A” for of the evolution of the See eases indicative Michigan. law Mich 244 Court. hold we Carl
Accordingly, E. in each case Henry Emery suffered and occasion which “out of” and in therefore arose course of their employment. in each case is affirmed. award
For the reasons set forth with therein, keeping Bricker Green v. policy (1946), observed Port Huron Hospital and Parker v. Mich 218; of law 361 Mich the rule announced herein (1960), com- will to the instant ease and all claims for apply after March the date of pensation 12, 1970, arising of this filing opinion. Kavanagh T. M. Adams, JJ., concurred with T. Gr. Kavanagh,
Appendix “A”
trend to our
present
evolutionary
holding
evidenced by the
list of
following chronological
cases: Kunze v. Detroit
Tree Co.
Shade
(1916),
Haller
Lansing
435;
Mich
City
v.
195 Mich
(1917),
753; Porritt
Detroit
United
Railway (1917),
v.
Malone v. Detroit United Railway (1918),
200;
Mich
Bagley 344 (1956), 268; Ditch Mich Motors, Inc. 345 Reo Mack v. Corporation (1956), 178; 345 Mich General Motors v. Moving (1957), 348 Co., Inc. Krist House Krist v. Sheppard Michigan Bank National v. 230; Mich Dyer & (1957), Sears, Roebuck 577; Mich v. 348 Chrysler Freiborg Company (1957), v. 92; Mich 350 De- Corporation (1957), v. 104; Mich Wheeler 350 partment 590; Mich Conservation of Crilly Lasiewicki 303; Mich and Ballou Company Tusco Products but mere- be exhaustive list is not intended to This ap- evolutionary representative ly strains parent them law. To correlate in the case Court’s say meaningful when to that is but make them and injury, the the then occasions the employment. arises “out of” the present affirmance). (for cases These J. Black, question, of” aris- another “out of and in the course perdurable ing part § of II the under of 412.1). (CLS § Had the law previously question I would be decided, not been support applied reasoning ready of Justice to the Judges Burns that also T. G-. Kavanagh, App 89). ques- (11 in Whetro Mich Holbrook by a series of unani- has settled tion however been quoted statutory Court; the mous decisions this remaining phrase it when the was meanwhile it. first to examine undertook Court dis- ruled without occasion the Court that first On (Klawinski [1915], &M. S. R. Co. v. Lake Shore sent engaged employee 643) death of Mich the having caused death been of,” “in course the striking directly by from above a bolt not arise during rain did storm,” “a wind and violent reasoning “out of” his by Black, memorandum opinion was based upon Court this wherein industrial commission Wisconsin out “Did the question injury grow posed, injury?”, cause the industry and did 648 of our (p report): with answer as follows refers opinion “We are this language accidents; those caused industry to industrial to and does not chargeable industry, apply of nature from those forces resulting such Grod, described the common law as acts of *10 by forces as are uncontrolled men.”1 wholly facts were For Klawinski’s case these controlling stipulated:
Mr. hand, working Klawinski was a section of which defendant railroad. The section gang at Mr. was a member had been working Klawinski storm the time on defendant’s when the right-of-way of the foreman and assistant up. Upon came order Mr. Klawinski most of the foreman, gang including in took in were nearby shelter a barn. While Mr. Klawinski the storm meanwhile barn, raging, a killed bolt of by lightning. Nelson v. Club Country Klawinski was followed by Kroon 479, again Detroit 329 Mich 339 Road Commission v. Kalamazoo County The three 1. Both were unanimous. opinions uni- and a judicial cases stand a settled view a view over continuant formly application essence thereof precise period years. long en- being fact of a workman is no matter that, time, at the in course of his employment gaged sus- then and there compensable injury an otherwise employ- of” his him not arise “out does hy tained jury.” He need exacted [1] words This of a claimant reasoning employed or record left only is quite unsound. Our statute show “out of and that he show “the in [1912] industry the course drafting has caused the never, of.” committee, whether in- v. Awkerman. by Black, immediately force of that causal if the
ment, act of God. refer to as an cases all three what distinguish cases the three cited I am unable any Nor is member us. is before which from that agree which bolt All of the Court. from Klawinski came Mr. and killed the barn struck storm” to wind and rain “violent out of that above, respondent referred industrial board which 645). legal (pp result findings of fact its Klawinski, had that under same, been the would have down the barn rain storm” blown wind and “violent upon fatal effect. Mr. Klawinski with learning to tinker with and more not more
We are
of consistent
of a series
water down the substance
ly
have construed and
decisions which
unanimous
might
though
standing
applied
we
even
statute,
wrong
upon
of those decisions
each and all
look
beginning.
acre
the discussion
from the
See
Half
Experience
(1962), Mich 366-399.3
Keller
Troy
City
culminating
with Powers
then,
since
again
impressed
(1968)
the Court
has
,
expression employed Mr.
of an
with the wisdom
Burnet
he dissented
when
Brandéis
Justice
Company
US
&Oil Gas
Coronado
expression
ap
815);
(52
we
L
76 Ed
S Ct
*11
ago Abendschein v. Farrell
plied
in
6
hut months
expression
(1969)
that
Mich 510. The
382
,
usually
policy
“in
wise
because
decisis is
stare
applica
important
that
is more
most matters it
that
it be settled
settled than
rule of law be
ble
right.”
is
here.
That
so
Nelson and
bolt
is the
are
Reporter.
366;
[2]
[3]
Half
[1]
unable to
Keller
agree fully
very
aere v.
Kroon
reason
accept
Fraser
Paragon
with Justice
cases.
when
why
Stamping
I
viewed as the cause
Bridge
find
distinction
myself
T. G.
4"
Company
Steel
bound to
Kavanagh
drawn between
Company
(1962),
of his
follow the
when he
(1962),
course of his the work assigned place to him the in the or under designated employer, the circumstances such sufficient to establish he was stricken “out of” judg-
There are occasions
to attain
when,
some
ment of a case in which the Court finds itself frac-
groups,
tured into indecisive
recede from views
some one Justice should
firmly
held
him. This is such
supra,
case,
acre,
as was
and other cases cited
Half
Wayne
Judges Wayne
the writer in
Circuit
County (1969),
Here, I would vote to affirm with declaration of of Klawinski, overrulement Nel- application son Kroon, effective to like compensation arising claims for workmen’s after just this date, was done Montana Horse Prod- ucts Co. v. Great Northern R. Co. 91 Mont (7 919); Refining P2d Sunburst Oil & Co. v. (7 Great Northern R. Co. Mont P2d 927); rehearing (7 on motion Mont P2d 929); Great Northern R. Co. v. Sun- affirmed Refining burst Oil & Co. 287 US 363-366 (53 254). S Ct L 145, 77 Ed 360, 85 ALR However, only some of the Brethren would not so overrule but would make such overrulement effective for these *12 v. Awkerman. Opinion by T. C. J. Brennan, Dissenting E. Emery, in Bricker v. Green as of Whetro and
cases Port and Parker v. Huron Mich 218, Hospital (1960), circumstances of The join being disagreement I now these are, what my with theirs, consistent and cast vote Brothers expressed by receding the views first from without City Detroit Mich in Williams me 270, 290. (dissenting). The function E. C. J. T. Brennan, place compensation is act workmen’s injuries upon the in- burden industrial financial spread ultimately that cost themselves, and dustries among the consumers. developed legislation because
This humane left in its of our civilization had industrialization trail of broken bodies. wake a liability general Employers from were absolved imposition exchange negligence, for the liability the act. more certain under employers say were legal mistake to But it is a Liability is basis from fault. absolved remedy. responsibility. of moral the basis Fault is society’s ex- law responsibility employers pression moral whose health and consumers to and the workmen and commer- sacrificed to industrial whose lives are production. progress and cial proximate thing cause. Fault is not the same cause. use the word law does not expresses concept it Rather, “arising phrase responsibility out in the consumer employment. course of” the “arising “in course of” of” The terms out things. They different are not redundant. mean two jealous by his last cobbler shot at his An adulterous may of” his wife “in the course be C. J. Brennan, T. E. *13 Dissenting Opinion job. of” his On “arise out not does But responsibility should his moral what basis logic By employer? would paid what his be disability far- add a society should decree price thing of shoes? to the utopian compensation law is not a The workmen’s suffering price tag attempt put all human on a living. incorporate the cost it into estranged wives Lightning, tornadoes flood, They tears. always this vale of us, in be with will fore- when our of human the occasion were They sharp tilling sticks. with soil were bears by-product revolution, industrial not are responsibility any moral sense nor are by, enjoy profit our of, the fruits who of those society. industrialized modern prece- apology for the without reverse I would dents. with T. E. concurred JJ., Kelly, Dethmers C. J.
Brennan,