Favorite v. Kalamazoo State Hosp.

• Decision Date: 06 June 1927
• Docket Number: No. 61.,61.
• Citation: 214 N.W. 229,238 Mich. 566
• Parties: FAVORITE v. KALAMAZOO STATE HOSPITAL et al.
• Court: Michigan Supreme Court

238 Mich. 566

214 N.W. 229

FAVORITE

v.KALAMAZOO STATE HOSPITAL et al.

No. 61.

Supreme Court of Michigan.

June 6, 1927.

Certiorari to Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Daisy M. Favorite, opposed by the Kalamazoo State Hospital, employer, and the State Accidental Fund, insurer. The commission declined to make an award, and the claimant brings certiorari to the Department of Labor and Industry. Order set aside, and record remanded.

Argued before SHARPE, C. J., and BIRD, SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ.

Wiest, J., dissenting.Thomas Shields & Silsbee, of Lansing (Clayton F. Jennings, of Lansing, of counsel), for appellant.

Roy Andrus, of Lansing, for appellees.

SHARPE, C. J.

The findings of the commission, based on facts which are not in dispute, disclose that on January 18, 1926, plaintiff was employed in the defendant hospital as a nurse; that she and the other nurses lived in a dwelling on the hospital grounds, called the ‘Nurses' Home,’ located about 20 rods from the building in which she worked; that a concrete sidewalk led from one of these buildings to the other; that plaintiff's regular hours of work were from 8 in the morning until 8 at night, but she was subject to be called in an emergency at any time, and she could not absent herself from the grounds of the home without permission after 10:30 at night; that on the evening of the day above stated plaintiff left the place of her employment about 8 o'clock to go to the home; that in passing along said walk she slipped anl fell on the icy surface thereof, and sustained quite severe injuries.

Her claim for compensation was resisted by the defendants on the ground that the accident did not arise out of and in the course of her employment. The commission found that the accident arose in the course of her employment, but that it did not arise out of such employment, and declined to make an award. Both of these requirements must be met to justify an award. Sichterman v. Kent Storage Co., 217 Mich. 364, 186 N. W. 498, 20 A. L. R. 309. That the accident arose in the course of plaintiff's employment is, we think, clearly established under our holding in Brink v. Lumber Co., 229 Mich. 35, 201 N. W. 222, and cases cited therein.

We feel constrained to disagree with the commission in their finding that it did not arise out of her employment. The nurses' home on the hospital grounds was provided as a place in which these employees should live. It is apparent that one of the purposes of maintaining it was to secure the proximity of the nurses to the building in which those under their care were kept, so that they might quickly respond to a call at other than their regular hours of work. It was for this reason that their contracts of employment required them to remain at the home during certain hours when off duty. It seems clear that, while going to and returning from the home, plaintiff was in the ambit of her employment. A concrete walk was provided, on which she might travel. Her use of it was no different from that to which the hallways and stairs in the hospital buildings would have been put, had the living quarters of the nurses been located therein. The accident was directly attributable to her employment. While her rest period had arrived, she might, under her contract of employment, have been called into service, had an emergency arisen requiring it, at any moment after she had reached the home, had she got there in safety.

It is urged, however, that her accident was due to the icy condition of the walk, one of the common risks to which the general public is exposed, and therefore not incidental to her employment. The walk leading from the hospital building to the nurses' home was not placed there by the public, or designed for its use. While occasionally used by visitors, or by persons having business at the hospital, it was a private walk on the hospital grounds, constructed for the use of its employees. By reason of her employment, plaintiff was passing along it at the time of the accident, and the hazard of its icy condition was incidental thereto.

Hopkins v. Michigan Sugar Co., 184 Mich. 87, 150 N. W. 325, L. R. A. 1916A, 310, relied on by defendant, is, we think, easily distinguishable. In that case the employee had reached his home city after a trip on defendant's business. He was free to go where he pleased. He was on his way to his home. When approaching a street car, he slipped and fell on the icy pavement. It was held that the risk he encountered was one common to all persons using the public street at that time.

The distinction between different classes of street accidents was pointed out in Kunze v. Detroit Shade Tree Co., 192 Mich. 435, 158 N. W. 851, L. R. A. 1917A, 252. In that case the person injured was performing a duty which took him from place to place in the city, and it was held that the nature of his employment exposed him to the risks incidental to the use of the public streets, and that an injury, caused by being struck by an automobile, arose out of his...