BUSHNELL, J. (dissenting).
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
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, 238 Mich. 566, where a nurse slipped on some ice on a sidewalk on the premises owned and controlled by the institution of which she was an employee. The sidewalk was only occasionally used by the public. The accident occurred while the nurse was walking on the private sidewalk to her living quarters which also were on the employer's premises. At the time the accident occurred she was neither at the place of her employment nor performing any service for her employer. In both cases the employee had left the place of employment and was en route home. The nurse fell on a private sidewalk. The plaintiff fell on a private parking lot. * * *
"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
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, 231 Mich. 536; Haggar v. Tanis, 320 Mich. 295; and authorities therein cited are controlling.
In the Pearce Case this Court followed the reasoning of Chief Justice Rugg in McNicol's Case, 215 Mass. 497 (102 NE 697, LRA1916A 306). The McNicol's Case was recently cited in Appleford v. Kimmel, 297 Mich. 8. Since the McNicol's Case the Massachusetts supreme judicial court on June 1, 1945, speaking though Mr. Justice Qua, now Chief Justice Qua, decided the Rogers's Case, 318 Mass. 308 (61 N.E.2d 341, 159 ALR 1394). The facts in that case are almost identical with the ones here. That court said:
"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,
"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.
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, 231 Mich. 536, and many other decisions of this Court denying compensation on the ground that there was no causal connection between the injury and the employment. This Court has consistently held that an injury to an employee while merely on his way to or from work, without any causal connection between his injury and his work, and without any duty to perform at that time for the employer, does not arise out of and in the course of the employment. A few of such cases are as follows: Lipinski v. Sutton Sales Co., 220 Mich. 647; Stocker v. Southfield Co., 244 Mich. 13; Dent v. Ford Motor Co., 275 Mich. 39; Shane v. Alexander, 277 Mich. 85; Furino v. City of Lansing, 293 Mich. 211; Simpson v. Lee & Cady, 294 Mich. 460; Rucker v. Michigan Smelting & Refining Co., 300 Mich. 668; Meehan v. Marion Manor Apartments, 305 Mich. 262; Rector v. Ragnar-Benson, Inc., 313 Mich. 277; Murphy v. Board of Education of the School District of the City of Flint, 314 Mich. 226; Haggar v. Tanis, 320 Mich. 295; Trumble v. Michigan State Police, 325 Mich. 237.
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, 238 Mich. 566, relied upon by the commission in awarding compensation in the case at bar, the employee, a
I agree with Mr. Justice BUSHNELL that in the Pearce Case (1935), supra, this Court followed the reasoning of the McNicol's Case, 215 Mass. 497 (102 NE 697, LRA1916A 306), decided in 1913. In 1941 Mr. Justice BUSHNELL, writing for the Court in Appleford v. Kimmel, 297 Mich. 8, also quoted from the McNicol's Case and recognized its rule as the law of this State. Since the McNicol's Case was decided by the Massachusetts supreme court, the statute law of that State was changed in 1927, and in 1945 as an apparent consequence of such change that court in deciding the Rogers's Case (318 Mass. 308 [61 N.E.2d 341, 159 ALR 1394]), liberalized its holding in the McNicol's Case in accordance with the statute. The Rogers's Case, relied upon by Mr. Justice BUSHNELL as the authority for a new rule to be adopted in this State, is not controlling here. Unlike Massachusetts, the statute law of this State has not been changed in that respect.
For that reason this Court does not adopt the test
The liberal provisions of the Massachusetts statute above referred to were added to the Massachusetts
"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
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, 215 Mass. 497 (102 NE 697, LRA1916A 306)."
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
"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 in Appleford v. Kimmel, supra (297 Mich. 8), referred with apparent approval to many decisions of this Court and also the Massachusetts decision in the McNicol's Case, supra. The test applied and followed was not where the injury occurred, but whether it occurred while the employee was still within the ambit of his employment. The plaintiff was employed as assistant manager of a theater to handle disturbances and call the police if necessary.
"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 Battle Creek, 229 Mich. 650 (38 ALR 1039). See, also, Kunze v. Detroit Shade Tree Co., 192 Mich. 435 (LRA1917A 252); Clifton v. Kroger Grocery & Baking Co., 217 Mich. 462; and Simpson v. Lee & Cady, 294 Mich. 460. See annotation of authorities on compensation for an assault arising out of and in the course of employment in 112 ALR 1258 et seq.
"The facts presented in this record sustain the finding of the department of labor and industry that plaintiff's injury arose out 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
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 of Education, 266 Mich. 271. Injuries to truck drivers, while on the public highway performing duties for the employer and on route within their employment, have been held compensable; while injuries which have occurred while the driver was off route and on his own business or pleasure, have been held not to have arisen out of and in the course of the employment. Conklin v. Industrial Transport, Inc., 312 Mich. 250.
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.