Kelly v. Dixie Fuel & Supply Co.

• Decision Date: 08 January 1951
• Docket Number: No. 64,64
• Parties: KELLY v. DIXIE FUEL & SUPPLY CO. et al.
• Court: Michigan Supreme Court

Page 356

45 N.W.2d 356

329 Mich. 466

KELLY v. DIXIE FUEL & SUPPLY CO. et al.

No. 64.

Supreme Court of Michigan.

Jan. 8, 1951.

Marcus, Kelman & Loria, Detroit, for plaintiff and appellee.

Alexander, Cholette, Buchanan, Perkins & Conklin, Richard A. Harvey, Detroit, for defendants and appellants.

Before the Entire Court.

NORTH, Justice.

On February 4, 1948, plaintiff's employment with defendant Dixie Fuel and Supply Company was terminated as of the close of plaintiff's work on that day. Thereupon he left the employer's place of business as usual. The next day plaintiff went to the payroll room of the employer to collect wages due him. While waiting there a clerk called to Kelly, who was conversing with some other men. As plaintiff turned around his foot slipped off of a landing at the head of six or seven steps. He fell down the steps and received a personal injury. In proceedings brought for compensation the workmen's compensation commission held that plaintiff's injury arose out of and in the course of his employment. and awarded him compensation. The defendant employer and its insurer have appealed. The controlling question is this: Did plaintiff's accidental injury arise out of and in the course of his employment?

Our recent case of Tegels v. Kaiser-Frazer Corporation, 329 Mich. 84, 44 N.W.2d 880, 884, in its essential aspects might well be held to be controlling of decision in the instant case and result in reversal. In the concluding portion of the Tegels case Mr. Justice Sharpe, writing for the Court, referring to plaintiff, said: 'He was exercising a privilege common to all members of the union in the selection of a stemard. It cannot be said that his injury arose out of and in the course of his employment.' Using almost the same words in the instant case it might be said: He, plaintiff, was exercising a privilege common to all his fellow employees, collecting wages due him for services rendered, but 'It cannot be said that his injury arose out of and in the course of his employment.'

However, for fullness of decision, we note some other adjudications in the light of which we are of the opinion the award of compensation to plaintiff must be vacated.

The mere fact that at the time of his injury plaintiff was on the premises of his former employer is not controlling of his right to compensation. See Tegels v. Kaiser-Frazer Corporation, supra; Pilgrim v. Menthen, 327 Mich. 714, 42 N.W.2d 793; Luteran v. Ford Motor Co., 313 Mich. 487, 21 N.W.2d 144.

Plaintiff claims that his return to defendant's premises to collect his pay was an 'incident' of his employment and therefore his injury while there arose out of and in the course of his employment. In this connection plaintiff's brief quotes the following: 'Discharge by the employer, and quitting by an employee, are but incidents of all employments. A discharged employee is allowed a reasonable time in which to leave the premises of his employer.' Anderson v. Hotel Cataract, 70 S.D. 376, 17 N.W.2d 913, 917.

Admittedly there are English decisions which support plaintiff's contention. See Riley v. W. Holland & Sons, Ltd., 1 [1911] KB 1029, 104 LT Rep 371, and cases therein cited. And there are a few decisions in this country which seem to follow the conclusion reached in the Riley case. See Parrott v. Industrial Commission, 145 Ohio St. 66, 60 N.E.2d 660. But we think many of the cases upon which plaintiff relies are distinguishable from the instant case either because of the fact that at the time of his injury the employee had not yet left the premises of the employer, or because he had not been discharged from his employment. Rayner v. Sligh Furniture Co., 180 Mich. 168, 146 N.W. 665, L.R.A.1916A, 22; Mitchell v. Consolidated Coal Co., 195 Iowa 415, 192 N.W. 145; Zygmuntowicz v. American Steel & Wire Co., 240 Mass. 421, 134 N.E. 385; Anderson v. Hotel Cataract, supra; and Gardner v. Stout, 342 Mo. 1206, 119 S.W.2d 790, are cases in which the employee at the time of his injury had not left the premises of the employer. Lowry v. Sheffield Coal Co., 24 Times L.R. 142; Crane Co. v. Industrial Commission, 306 Ill. 56, 137 N.E. 437; Hackley-Phelps-Bonnell Co. v. Industrial Commission, 165 Wis. 586, 162 N.W. 921, L.R.A.1918A, 277, are cases wherein the employee was injured before employment had been finally terminated. In Simpson v. Lee & Cady, 294 Mich. 460, 293 N.W. 718, our holding is embodied in the following headnote: 'Since a precise or comprehensive definition will not well serve to determine the relation between the accident and the employment of the employee for whose injuries or death recovery is sought under the workmen's compensation act, the problem is left to be worked out by the process of exclusion and inclusion in particular cases.'

We have held repeatedly that compensation will not be awarded to an employee unless there is established a causal relation between his employment and the injury. Daniel v. Murray Corp. of America, 326 Mich. 1, 39 N.W.2d 229; Murphy v. Flint Board of Education, 314 Mich. 226, 22 N.W.2d 280. 'The right to an award is not alone founded upon the fact that [the employee when injured was acting incidentally to his employment], but upon the fact that the service the employee is rendering at the time of the injury grows out of and is incidental to the employment.' California Casualty Indemnity Exchange v. Industrial Acc. Comm., 190 Cal. 433, 213 P. 257, 258, quoted in Lumbermen's Mutual Casualty Co. v. Industrial Accident Comm., 134 Cal.App. 131, 25 P.2d 22.

As noted by the California court, an employee in going to and from his place of employment is engaged in doing that which is 'incidental' to his employment, but we have universally held that an injury sustained by the employee before he reaches his place of employment does not arise out of and in the course of his employment, unless at the time he is performing some service for his employer. 'Broadly defined, it may be taken as authoritatively settled that 'out of and in the course of his employment' covers those accidents which befall an employee while he is discharging some duty he is authorized or directed to perform for the furtherance, directly or indirectly, of his employer's business.' Clifton v. Kroger Grocery & Baking Co., 217 Mich. 462, 187 N.W. 380, 381.

As applied to the...