Plaintiff was employed to work in one of defendant's plants. Defendant owned a
The workmen's compensation act, part 2, § 1 (CL 1948, § 412.1 [Stat Ann 1944 Cum Supp § 17.151]), was amended by PA 1954, No 175, effective August 13, 1954, which added the following:
"Every employee going to or from his work while on the premises where his work is to be performed, and within a reasonable time before and after his working hours, shall be presumed to be in the course of his employment."
Defendant says that the amendment's presumption regarding "on the premises" injuries is not conclusive, fades in the face of evidence, and, in the instant case, disappeared upon introduction of proofs to the contrary. The presumption, so-called, is a creature of the statute. Our duty is to arrive at the legislative intent in its creation as expressed in the statute. In such pursuit no particular charm inheres in court-attached labels such as "conclusive," "absolute," "disputable" or "rebuttable" as a guide to legislative intent. Defendant does not point to
I cannot subscribe to the notion that the legislature intended no change by the amendment. There is a strong presumption to the contrary. Lawrence Baking Co. v. Unemployment Compensation Commission, 308 Mich. 198 (154 ALR 660); Bonifas-Gorman Lumber Co. v. Unemployment Compensation Commission, 313 Mich. 363; In re Loakes' Estate, 320 Mich. 674; Packard Motor Car Company v. Unemployment Compensation Commission, 320 Mich. 358. The amendment was not necessary for the purpose of creating a presumption that an injury arises in the course of employment in those situations in which an employee is injured while coming or going and his coming and going are a part of his duty or of the work he is paid to do, inasmuch as it was already so held, without benefit of a statutory presumption, in cases such as Kunze v. Detroit Shade Tree Co., 192 Mich. 435
Why, it may be asked, does the amendment speak merely in terms of a presumption if it is not to be considered rebutted by proof that plaintiff, when injured on the premises, had not yet reached or had already left the place thereon where his work is to be performed? If not thus rebuttable, does it follow that what the statute created was not a presumption at all but a substantive right, or, if a presumption,
I am not impressed by defendant's argument that while plaintiff was on the parking lot he was not, in the language of the statute, "on the premises where his work is to be performed." Whether or not the parking lot was immediately adjacent to or a part of the same property on which the plant stood seems to me of no moment. The lot was in the proximity of and used as an adjunct to the plant in which plaintiff worked and it was furnished by defendant to plaintiff and his fellow employees for parking their automobiles as an incident to their employment in the plant. For the purposes of the amendment, it should be considered as part of the premises where plaintiff's work is to be performed.
Finally, defendant stresses that the amendment provides only for a presumption that an employee is "in the course of his employment" but not that his injury arises "out of his employment." So, says defendant, even if it be conceded that plaintiff, when injured, was in the course of his employment, the award must fail because there is no proof that his injury arose out of his employment and the amendment supplies no presumption in that regard. Here again, as was true of defendant's contention that the "in the course of" presumption was evaporated by the evidence in the record, if it were to be held that, despite the presumption that an employee was in the course of employment when injured, his injuries do not arise out of his employment if they were sustained on the way to or from his work while on the premises unless he was performing a duty for his employer at the time, such holding would serve to render the amendment futile and pointless. Furthermore, it had long been held in Michigan that an employee's injury sustained on the premises while going to or from work may be one that arises out of his
"Acts of ministration by a servant to himself, such as quenching his thirst, relieving his hunger, protecting himself from excessive cold, performance of which while at work are reasonably necessary to his health and comfort, are incidents to his employment and acts of service therein within the workmen's compensation acts, though they are only indirectly conducive to the purpose of the employment. Consequently no break in the employment is caused by the mere fact that the workman is ministering to his comforts or necessities, as by warming himself, or seeking shelter, or by leaving his work to relieve nature, or to procure a drink, refreshments, food, or fresh air, or to rest in the shade."
But defendant's reliance is on Daniel v. Murray Corporation of America, supra, as having, in effect, overruled those cases. The majority opinion in Daniel made no mention of those cases, either to distinguish or overrule them. Unfortunately, the minority opinion, which reached the same result as did those cases, also failed to mention or to place any reliance upon them, but, instead, planted decision upon a Massachusetts case clearly predicated on a statutory provision not in effect in Michigan, which defect in reasoning was clearly pointed out (p 7) in the majority opinion. As one who signed that majority opinion, I am constrained to say, however, that I now believe it to have been erroneous. As just
Plaintiff's injury arose out of and in the course of his employment. The award should be affirmed, with costs to plaintiff.
For reasons given in the dissenting opinions of Salmon v. Bagley Laundry Company, 344 Mich. 471, 475; and Mack v. Reo Motors, Inc., 345 Mich. 268, 270, and for supplementary reasons given in Mr. Justice BLACK'S opinion (handed down this day) of Dyer v. Sears, Roebuck & Company, 350 Mich. 92, I concur in affirmance of Victor Freiborg's award.
EDWARDS, VOELKER, and BLACK, JJ., concurred with SMITH, J.
CARR, J. (dissenting).
This case is before us for decision on the bases of undisputed proofs and applicable provisions of the workmen's compensation law.
On the 22d of June, 1955, plaintiff, who began his work at 6:30 a.m., entered the parking lot at approximately 5:45. After parking his car and leaving the vehicle he was struck by the automobile of another Chrysler employee and was injured. This proceeding was instituted under the statute for the purpose of obtaining compensation for such injury.
The basic question at issue is whether the undisputed facts fairly bring the case within the scope of the workmen's compensation act. More specifically, may it be said that the accident in which plaintiff was injured arose "out of and in the course of his employment"? So far as this record discloses, the parking lot in question was maintained by defendant solely as an accommodation for employees at the Mack plant who wished to use it. There was no obligation on their part that they should do so. Inferentially the privilege allowed might have been withdrawn at any time. When plaintiff parked his automobile on the lot on the occasion in question he was acting voluntarily and solely for his own benefit. Obviously he might have parked his car elsewhere or have traveled to his work by public conveyance or some other method of transportation. His employment did not include the use of his automobile or his parking it on defendant's lot. On the record before us there is no proper basis to support a conclusion that the injury for which compensation is sought arose out of or in the course of plaintiff's employment. In consequence, it is not within the purview of the statute as enacted by the legislature.
In writing for affirmance of the award Chief Justice DETHMERS discusses at some length the amendment to part 2, § 1, of the compensation law by PA 1954, No 175. I am not in accord with his apparent
"An employee, who receives a personal injury arising out of and in the course of his employment by an employer who is at the time of such injury subject to the provisions of this act, shall be paid compensation in the manner and to the extent hereinafter provided, or in case of his death resulting from such injuries such compensation shall be paid to his dependents as hereinafter defined. The term `time of injury' or `date of injury' as used in this act shall in the case of a disease or in the case of an injury not attributable to a single event be the last day of work in the employment in which the employee was last subjected to the conditions resulting in disability or death.
"Every employee going to or from his work while on the premises where his work is to be performed, and within a reasonable time before and after his working hours, shall be presumed to be in the course of his employment." CLS 1956, § 412.1 (Stat Ann 1955 Cum Supp § 17.151).
On behalf of plaintiff emphasis is placed on the concluding sentence of the section which was added by the amendment. It will be noted that in no case does the presumption apply unless the employee is "on the premises where his work is to be performed." In this connection changes in the bill (1954 Senate Bill No 1150) during its consideration by the legislature are significant. As introduced the measure provided that "Every employee going to and from his employment while on the premises of his employer shall be deemed to be performing a service
The act of plaintiff in parking his car on the lot, pursuant to the privilege granted him by defendant, was not an incident of his work in such sense as to bring it within the purview of the statute. A contrary view suggests the conclusion that plaintiff's transportation by whatever means he might select for that purpose would be likewise incidental to his employment and, hence, that any injury suffered by him in the course of such transportation, through the wrongful act of another, or otherwise, would be compensable under the statute. Such result is clearly beyond the legislative intent as manifested in the compensation act.
Other changes in the bill made in the legislature before final enactment are also significant on the question of intent. It will be noted that as originally introduced the presumption was expressed to apply not only to any premises of the employer but also to the requirement that the injury to be compensable must arise out of the employment as well as in the course thereof. This was changed by amendment in such manner as to refer to the course of employment only, and to limit the arising of the presumption to a reasonable time before and after working hours.
It is generally recognized that a presumption may not be weighed against evidence. This Court in numerous prior decisions has declared that such is the established rule in this State. In Gillett v. Michigan United Traction Co., 205 Mich. 410, 414, 415, it was said:
"It is now quite generally held by the courts that a rebuttable or prima facie presumption has no weight as evidence. It serves to establish a prima facie case, but if challenged by rebutting evidence, the presumption cannot be weighed against the evidence. Supporting evidence must be introduced, and it then becomes a question of weighing the actual evidence introduced, without giving any evidential force to the presumption itself. In 1 Elliott on Evidence, § 91, p 114, it is said:
"`It (the presumption) may be directly rebutted by such evidence, or it may be shown thereby that it was never applicable to the particular facts, for it will be found that presumptions are usually very general in their nature, and lose their force and application
Among other decisions of like import are Baker v. Delano, 191 Mich. 204; Noonan v. Volek, 246 Mich. 377; Hanna v. McClave, 271 Mich. 133; Patt v. Dilley, 273 Mich. 601. In Christiansen v. Hilber, 282 Mich. 403, the general rule recognized in Michigan was summarized as follows:
"Since presumptions of fact are liable to be contrary to the facts they are only introduced to supply the want of real facts and in many cases to determine which party shall take upon himself the burden of showing what are the facts but they never obtain against positive proof." (Syllabus 1.)
"A rebuttable presumption has no weight as evidence but merely serves to establish a prima facie case so that, if challenged by rebutting evidence, supporting evidence must be introduced and it then becomes a question of weighing the actual evidence introduced." (Syllabus 3.)
The right to compensation in any case of this kind necessarily depends on the facts and on the law. Here the facts, as before noted, are not in dispute. It is the duty of the Court to construe the statute as the legislature has enacted it. Clearly it was not, and is not, intended as a substitute for general accident or health insurance. It must be presumed that the legislature has indicated its intent in the language of the enactment. If its scope is to be extended such result may properly be accomplished by legislative action only. Our duty is to interpret and apply the law as we find it.
The decision of the referee in denying compensation to plaintiff was, under the proofs before him, correct, and should have been affirmed by the appeal board. Plaintiff's accident and injury did not arise out of his employment or in the course thereof. The case should be remanded to the appeal board of the
SHARPE and KELLY, JJ., concurred with CARR, J.