Fischer v. Lincoln Tool & Die Co.

• Decision Date: 24 November 1971
• Docket Number: No. 1,Docket No. 9741,1
• Citation: 37 Mich.App. 198,194 N.W.2d 476
• Parties: Mitchell FISCHER, Plaintiff-Appellee, v. LINCOLN TOOL & DIE COMPANY and Citizens Mutual Insurance Company, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 476

194 N.W.2d 476

37 Mich.App. 198

Mitchell FISCHER, Plaintiff-Appellee, v. LINCOLN TOOL & DIE COMPANY and Citizens Mutual Insurance

Company, Defendants-Appellants.

Docket No. 9741.

Court of Appeals of Michigan, Division No. 1.

Nov. 24, 1971.

Released for Publication Feb. 25, 1972.

Leave to Appeal Denied March 3, 1972.

Thomas J. McNally, Detroit, for defendants-appellants.

Myron B. Charfoos, Detroit, for plaintiff-appellee.

Before LESINSKI, C.J., and HOLBROOK and VanVALKENBURG, ^* JJ.

PER CURIAM.

This appeal is brought by the employer and its insurance carrier from the decision of the workmen's compensation appeal board, which affirmed the award of compensation to an employee injured upon a public sidewalk while on his way to work.

Defendant's place of business was located in a substantially residential area and consisted of a small factory and an adjoining residential structure in which patterns were stored. The defendant's entire business property occupied three adjoining lots fronting upon Trumbull Avenue in Detroit, Michigan. Along the front of this property ran a public sidewalk, while another paved walk connected this passageway with a side entrance to the factory which employees were requested to use. The rear of the lot upon which the residential structure stood was apparently used on occasion for the parking of delivery trucks. No parking facilities were provided for employees, and those who drove to work were expected to park upon the street. On March 3, 1967, plaintiff, an employee of the defendant, drove to work and parked on Trumbull Avenue opposite and slightly to the north of the defendant's property. The roads and sidewalks were apparently in the typical condition for that time of the year in Michigan, being covered with patches of snow, ice, and slush. Plaintiff alighted from his car, crossed Trumbull, and at some point along the public sidewalk abutting the defendant's property slipped and fell, severely injuring his leg and hip. The injuries so sustained have apparently disabled plaintiff from further work of like kind to that which he had been performing for the defendant.

The referee found that plaintiff's injuries arose out of and in the course of his employment and awarded compensation. The appeal board affirmed, partially relying upon Lasiewicki v. Tusco Products Co., 372 Mich. 125, 125 N.W.2d 479 (1963), and its own interpretation of recent appellate decisions in this area. In affirming the referee, the appeal board found that plaintiff was upon a public sidewalk at the time of his injury. We are bound by this finding. Maki v. Hanna Iron Ore Division, 24 Mich.App. 258, 180 N.W.2d 121 (1970); M.C.L.A. § 418.861; M.S.A. § 17.237 (861). Thus the question on appeal is a question of law: Does an employee injured upon a public sidewalk while on his way to work and while within close proximity to the place where he works suffer an injury which is compensable as arising out of and in the course of his employment?

In 1940 our Supreme Court denied compensation to the widow of a 77-year-old man who injured himself by falling upon an icy sidewalk while his hand crossed over his employer's property line reaching for the doorknob. Simpson v. Lee & Cady, 294 Mich. 460, 293 N.W. 718 (1940). Obviously if plaintiff's award is to be upheld in this case, this compelling precedent must be overcome.

Falls on icy sidewalks are not uncommon occurrences in workmen's compensation law. In general such accidents are not compensable, as the general rule is that injuries sustained while going to or coming from work do not arise out of or in the course of one's employment. Some recent cases from other jurisdictions support Michigan's Simpson decision. Action v. Wymore School District No. 114, 172 Neb. 609, 111 N.W.2d 368 (1961); Tromba v. Hardwood Mfg. Co., 94 R.I. 3, 177 A.2d 186 (1962); Halama v. Dept. of Industry, Labor & Human Relations, 48 Wis.2d 328, 179 N.W.2d 784 (1970).

However there are exceptions to this general going to and coming from work rule. One of the most important is recognized in Michigan by statute, M.C.L.A. § 418.301(2); M.S.A. § 17.237(301(2)), which provides:

'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.'

This language was added to our workmen's compensation law in 1954, ¹ long after the decision in Simpson and substantially before the 1967 accident now under our consideration.

There has been a sufficient number of cases construing this statute to indicate clearly an intent to interpret its provisions liberally. Freiborg v. Chrysler Corporation, 350 Mich. 104, 85 N.W.2d 145 (1957); Dyer v. Sears, Roebuck & Co., 350 Mich. 92, 85 N.W.2d 152 (1957); Lasiewicki v. Tusco Products Co., 372 Mich. 125, 125 N.W.2d 479 (1963); Jean v. Chrysler Corporation, 2 Mich.App. 564, 140 N.W.2d 756 (1966). Of particular interest is the construction to be given the word 'premises' as contained in this act. 'Premises' does not equal 'property', and land owned by an employer may or may not be part of the premises, just as land owned by another than the employer might still be considered part of his premises. In Lasiewicki, supra, a portion of a city-owned roadway used and maintained by the employer as a...