Dyer v. Sears, Roebuck & Co.

• Citation: 85 N.W.2d 152,350 Mich. 92
• Decision Date: 07 October 1957
• Docket Number: No. 41,J,41
• Parties: Esther R. DYER, Plaintiff and Appellee, v. SEARS, ROEBUCK & COMPANY, Defendant and Appellant. anuary Term.
• Court: Supreme Court of Michigan

Page 152

85 N.W.2d 152

350 Mich. 92

Esther R. DYER, Plaintiff and Appellee, v. SEARS, ROEBUCK & COMPANY, Defendant and Appellant.

No. 41, January Term.

Supreme Court of Michigan.

Oct. 7, 1957.

Plaintiff was engaged by defendant in doing typing and filing work. She was allowed an hour each day for lunch and was at liberty to eat where she pleased, including defendant's lunchroom on the third floor of the building where plaintiff worked. On May 26, 1954, at 11:30 in the morning, that being starting time of the lunch hour, plaintiff punched her timecard and proceeded to the third floor lunchroom. Having eaten there, she started by stairway toward the street, intending to pay a bill (in a nearby office building) prior to return to work at 12:30. While descending the stairs in defendant's building she slipped and fell forward, injuring her back.

Plaintiff filed claim for compensation under the workmen's compensation act. The appeal board granted compensation as prayed. The sole question on review of the award is whether plaintiff's injury occurred in the course and out of her employment. The case as briefed and argued turns principally on effect, if any, of the presently quoted amendment of 1954.

Alexis J. Rogoski and Robert Bunker Rogoski, Muskegon, for defendant and appellant.

Marcus, Kelman, Loria, McCroskey & Finucan, by Jerry S. McCroskey, Muskegon, for plaintiff and appellee.

Before the Entire Bench.

BLACK, Justice (after stating the facts).

This case revives the contentious debate our reports disclose since the tenets of Haller v. City of Lansing, 195 Mich. 753, 162 N.W. 335, L.R.A.1917E, 324 (and Brink v. J. W. Wells Lumber Co., 229 Mich. 35, 201 N.W. 222) came to veiled doubt in Luteran v. Ford Motor Co., 313 Mich. 487, 21 N.W.2d 825. Prior to Luteran's premonitory prelude--that Haller 'goes to the extreme'--, and at least until Daniel ¹ and Hickman ² were handed down, our decisions definitely and relevantly committed the workmen's compensation act to that interpretation which accorded then and accords now which the known weight of American and English authority. See dissenting opinions in Salmon v. Bagley Laundry Co., 344 Mich. 471, 74 N.W.2d 1 and Mack v. Reo Motors, Inc., 345 Mich. 268, 76 N.W.2d 35. Our respects were duly paid to Haller--and Haller was declaredly followed--in Amicucci v. Ford Motor Co., 308 Mich. 151 at page 154, 13 N.W.2d 241, at page 243, wherein it was said:

'The phrase, 'arising out of and in the course of his employment' (2 Comp.Laws 1929, § 8417, Stat.Ann. § 17.151) was adopted in identical words from the English Workmen's Compensation Act 'and presumably with the meaning previously given it here.' Hopkins v. Michigan Sugar Co., 184 Mich. 87, 90, 150 N.W. 325, 326, L.R.A. 1916A, 310. Its meaning was fully discussed in the Hopkins and subsequent cases, and in Haller v. City of Lansing, 195 Mich. 753, 162 N.W. 335, 337, L.R.A.1917E, 324, a number of applicable English authorities are reviewed.'

With changes of personnel here, unfortunate changes of interpretive thought reared themselves. No intervening amendment of the statute brought this about. Inapposite yet contagious notions recorded in Daniel, Hickman and Pilgrim ³--imported from Massachusetts ⁴ and renounced this day in Freiborg v. Chrysler Corporation, Mich., 85 N.W.2d 145--descended unnoticed on Haller and Brink and resulted finally in flat repudiation of both.

Such is the vexing hotchpotch to which legislative attention and resolution was directed in 1954. The result appears in an amendment that year of section 1 of part 2 of the workmen's compensation act, reading as follows:

'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.' (P.A.1954, No. 175, C.L.S.1954, § 412.1.)

It will be noted that the substance and wording of this amendatory provision has been taken from language appearing in Brink (presently quoted). By enactment thereof the legislature calls, rather plainly, for judicial return to that which its membership intentionally ordained in 1912, according to early rulings of this Court. Haller (1917) and Brink (1924) were written into our reports by distinguished predecessors composing the so-called Fellows Court. Presumably, they knew more about the background and intended scope of the pivotal phrase--'arising out of and in the course of his employment'--, found in original and present section 1 of part 2 of the workmen's compensation act, than we do. The court members of that day 'were there', as the saying goes, and they tell us through Haller and Brink of original and steadfast legislative will that such phrase extend its protective range to a reasonable time and space for the employee to approach and leave the locality or zone of his work. This is plain utterance, understandable to lay and professional folk alike, and it should remove some of the tort-shaped barnacles we have gratuitously fastened in recent years to the hull of workmen's compensation. I suggest in these circumstances, that the amendatory provision of 1954 be treated as a message of courtesy, arriving here from a coordinate branch of government, purpose in the way of intent toward restoration of that which we have errantly excised from remedial legislation.

Our duty in these compensation cases is effectuation of the legislative intent. We may perform it here with the help of Haller and Brink, irrespective of applicability to this case of that which became effective, as an amendatory statute, after Esther Dyer's injury was sustained. I vote, then, to resurrect Haller and Brink; to implement the quoted amendment by overruling Daniel and its progeny including Salmon and Mack, and to reinstate for applicability to cases such as we have at bar Brink's original and rightful interpretation of said section 1. That interpretation, which is now reinforced by the foregoing amendment of 1954, is quoted from Brink, 229 Mich. at pages 37 and 38, 201 N.W. at page 222 as follows:

'Plaintiff was on the premises of the employer, going from his work, leaving within a reasonable time, following a customary and permitted route off the premises, and in the immediate vicinity of his labor. It is a general rule that an employee, under such circumstances, is still in the course of his employment. * * *

"In going to and from his place of work upon the premises owned or controlled by his employer, an employee is deemed as a general rule to be engaged in the employment.' * * *

"The employment is not limited by the exact time when the workman reaches the scene of his labor and begins it, nor when he ceases, but includes a reasonable time, space, and opportunity before and after, while he is at or near his place of employment. * * *'

"The protection of the law extends to a reasonable time and space for the employee to leave the locality or zone of his work and while he is in proximity, approaching or leaving his place of employment by the only means of access thereto."

Affirmed.

KELLY, J., concurs with result.

BLACK, VOELKER, SMITH and EDWARDS, JJ., concur.

DETHMERS, Chief Justice (concurring).

I believe it to be quibbling to say that plaintiff was not, at the time she suffered her injury, going from her work while on the premises where her work is to be performed and within a reasonable time after her working hours.

For reasons stated in my opinion in Freiborg v. Chrysler Corp., Mich., 85 N.W.2d 145, I think that the 1954 amendment to Part 2, § 1, of the workmen's compensation act applies to subsequent proceedings even though they involve an injury which antedated the amendment, and that the award to plaintiff should be affirmed with costs to her.

SHARPE, Justice (dissenting).

I am not in accord with the opinion of Mr. Justice BLACK, either as to the construction of the 1954 amendment or that plaintiff's injury arose out of and during the course of her employment.

Whether the act has retroactive effect to include injuries occurring prior to the effective date of the act need not be decided in this case as the act clearly relates to employees going to or from work. It does not include injuries to persons going upon a personal errand not in any way connected with his or her work.

My brother relies upon Haller v. City of Lansing, 195 Mich. 753, 162 N.W. 335, L.R.A.1917E, 324, to establish the rule that injuries during intermissions from labor are compensable if the injury occurs upon the employer's premises. The rule established in that case as interpreted by Justice Black has been overruled in a great number of cases, reference to which can be found in Mack v. Reo Motors Inc., 345 Mich. 268, 76 N.W.2d 35.

Decision in the case at bar is controlled by Salmon v. Bagley Laundry Co., 344 Mich. 471, 74 N.W.2d 1, 3. In that case we said 'The law is well settled that an industrial injury is compensable only when the injury is received while the employee is doing the duty he is employed to perform, and as a natural incident of the work, see Associated Oil Co. v. Industrial Accident Commission, 191 Cal. 557, 217 P. 744, cited with approval in Tegels v. Kaiser-Frazer Corp., 329 Mich. 84, 44 N.W.2d 880, 884.

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'The right to control or direct an employee is an essential element in determining whether the relationship of employer and employee exists. In Tuttle v. Embury-Martin Lumber Co., 192 Mich. 385, 158 N.W. 875 (Ann.Cas.1918C, 664), we held that the test of the relationship is the right to control, whether in fact exercised or not. See, also, Dennis v. Sinclair Lumber & Fuel Co., 242 Mich. 89, 218 N.W. 781, and Janofski v. Federal Land Bank, 302 Mich. 124, 4 N.W.2d 492. In cases involving independent contractors the right to direct or control is absent. In the case at bar, as in Tegels Case, supra, the right to control the actions or activities of the...