Mack v. Reo Motors, Inc., No. 35

CourtSupreme Court of Michigan
Writing for the CourtBOYLES; DETHMERS, SHARPE, REID and CARR, JJ., concurred with BOYLES; BLACK; Smith; SMITH and KELLY, JJ., concurred with BLACK
Citation76 N.W.2d 35,345 Mich. 268
PartiesGilda MACK, Plaintiff and Appellee, v. REO MOTORS, INC., and Aetna Casualty and Surety Company, Defendants and Appellants.
Docket NumberNo. 35
Decision Date02 April 1956

Page 35

76 N.W.2d 35
345 Mich. 268
Gilda MACK, Plaintiff and Appellee,
REO MOTORS, INC., and Aetna Casualty and Surety Company,
Defendants and Appellants.
No. 35.
Supreme Court of Michigan.
April 2, 1956.

[345 Mich. 270] Warner & Hart, Lansing, for plaintiff and appellee.

Lacey, Jones & Doelle, Detroit, for defendants and appellants.

Before the Entire Bench.

[345 Mich. 285] BOYLES, Justice.

For the reasons stated herein, I do not concur in affirming the award.

The facts and circumstances in 'intermission cases' (to use the designation employed by Justice BLACK) vary; and the mere fact that it is an 'intermission' case is not the yardstick which controls decision. In the instant case the facts and circumstances have been sufficiently stated in the opinion by the commission, quoted by Justice BLACK.

The Haller case, 1 decided in 1917, on which Justice Black relies, holds (syllabi):

'1. It is only wilful and intentional negligence of an employee that precludes recovery of compensation under the workmen's compensation act.

'2. The service tie or contractual relation and obligation between master and servant is not broken by suspension of all activities directly beneficial to the employer, as by noon intermission for lunch.

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'3. In proceedings for compensation for the death of an employee under the workmen's compensation act, where the death was due to injuries sustained as the result of an explosion of gas caused by deceased lighting his pipe, upon going into the employer's tool house adjacent to his work for better shelter from windy and inclement weather, while eating his lunch at the noon hour, and he was not prohibited by his employer from going into the tool house at such time, held, that such employee was within the act, and that compensation for his death was properly allowed.'

The first two of the above conclusions seem to have been abandoned, as not controlling of decision, in subsequent cases to decide whether an employee is entitled to workmen's compensation for an injury, under the statutory workmen's compensation law. The above third conclusion, as to the circumstances under which an employee may be entitled to compensation,[345 Mich. 286] is still with us, plainly shown by the many decisions of this Court since the Haller case was decided in 1917. In those cases this Court has often been called upon to decide whether the employee's injury arose out of and in the course of his employment; and as to whether there was a causal connection between his employment and the injury. If not, and if, at the time of his injury, the employee was engaged solely on a personal mission of his own, not then performing any service or duty for his employer, our decisions hold that the injury did not arise out of or in the course of the employment, and that consequently the employee was not entitled to compensation, under the act.

In the Haller case, relied on by Justice BLACK as controlling of the instant case, Haller, an employee of the city of Lansing, was a laborer engaged in leveling up a place in a city park. When the noon hour for eating lunch arrived, Haller quit working, took his dinner pail into a toolhouse to eat, and struck a match to light his pipe causing a gasoline explosion resulting in his injury. The Court, basing its conclusion on the ground that the contractual relation between master and servant continued unbroken during the noon-hour intermission, said, 195 Mich. at pages 759, 763, 162 N.w. at page 337:

"A workman is considered in the employment of his master during the intermission for the noon hour if he remains upon the premises.' Baldwin on Pers. Injuries (2d Ed.), § 374.

* * *

* * *

'Agreeably to that rule is generally held under workmen's compensation laws that, while such relation so continues, an injury to an employe may arise out of and in the course of his employment, although he is not directly engaged in the work of his employment at the time.

* * *

* * *

'The building was unlocked and free of access, with no warning signs, was on his employer's premises[345 Mich. 287] invitingly close to where he was working in the inclement weather. As before stated, in seeking shelter there during the noon intermission, he did a reasonable and natural thing under existing conditions, might reasonably light his pipe at such a time, was doing no forbidden thing, incurring no apparent risk, and violating no known rule of his employment.'

The Haller case, decided in 1917, on the basis of the master-servant relationship being continuous during an 'intermission' from work, does not apply, where we are called upon to decide, under the workmen's compensation statute law, which we must follow, whether the injury arose both out of and in the course of the employment, and whether there was a causal connection between the employment and the injury.

Luteran v. Ford Motor Co., 313 Mich. 487, 21 N.W.2d 825, decided in 1946, written by the late Justice North and concurred in unanimously by the Court, has been made the target of ridicule by Justice BLACK. I do agree with the Justice, however, when he concedes that it may overrule the Haller

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case. In the Luteran case the Court held that an employee was not entitled to workmen's compensation who was injured by being hit by a baseball bat during the halfhour noonday lunch hour 'intermission' while he was watching other employees playing baseball on his employer's premises. He was merely a spectator and during that 'intermission' was not engaged in performing any service whatever for his employer. The syllabi correctly state the holding of the Court:

'An injury 'arises out of' the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury (2 Comp.Laws 1929, § 8417, as amended by Act No. 245, Pub.Acts 1943).

[345 Mich. 288] 'Whether an injury can be said to have arisen out of and in the course of the employment depends upon the particular facts and circumstances of each case.

'The workmen's compensation act is not designed as a complete substitute for life, or sick and accident, insurance and sympathy is not allowed to broaden its express provisions (2 Comp.Laws 1929, § 8407, as amended).'

I agree with Justice BLACK where he writes 'matching of Haller against Luteran. Fairly tested in the same ring, one or the other must go to the mat of discard.' In view of the many decisions of this Court since the Haller case was decided in 1917, it is apparent that the Haller case has been effectively overruled by the subsequent Luteran case and many others, and that the Haller case has gone 'to the mat of discord.'

But the Luteran case, supra, does not stand alone in overruling the Haller case, and in deciding the basis on which this Court construes and follows the statute law. There are many others: Malone v. Detroit United Railway, 202 Mich. 136, 167 N.W. 996; Boner v. Eastern Michigan Power Co., 210 Mich. 142, 177 N.W. 225; Clifton v. Kroger Grocery & Baking Co., 217 Mich. 462, 187 N.W. 380; Geibig v. Ann Arbor Asphalt Const. Co., 238 Mich. 560, 214 N.W. 90; Beck v. Commercial Driveaway, Inc., 260 Mich. 550, 245 N.W. 806; Amicucci v. Ford Motor Co., 308 Mich. 151, 13 N.W.2d 241; Dershowitz v. Ford Motor Co., 327 Mich. 386, 41 N.W.2d 900; Gonter v. L. A. Young Spring & Wire Corporation, 327 Mich. 586, 42 N.W.2d 749; Pilgrim v. Menthen, 327 Mich. 714, 42 N.W.2d 793; Underwood v. National Motor Castings Division, Campbell, Wyant & Cannon Foundry Co., 329 Mich. 273, 45 N.W.2d 286; Brandner v. Myers Funeral Home, 330 Mich. 392, 47 N.W.2d 658; Weaver v. General Motors Corporation, 330 Mich. 404, 47 N.W.2d 665; Fields v. G. M. Brass & Aluminum Foundry Co., 332 Mich. 113, 50 N.W.2d 738; Arnold v. Ogle Construction Co., 333 Mich. 652, 53 N.W.2d 655.

We should add to that list those other decisions where the alleged injury to the employee occurred [345 Mich. 289] during what may also be termed an 'intermission,' namely, when the employee was not actively or actually engaged in doing work or performing any service for his employer, but was on a mission solely his own, personal to himself, during which time he was not performing any service for his employer. Such cases decided under various circumstances, are: Hills v. Blair, 182 Mich. 20, 148 N.W. 243; Buvia v. Oscar Daniels Co., 203 Mich. 73, 168 N.W. 1009, 7 A.L.R. 1301; Lipinski v. Sutton Sales Co., 220 Mich. 647, 190 N.W. 705; Clark v. Chrysler Corporation, 276 Mich. 24, 267 N.W. 589; Furino v. City of Lansing, 293 Mich. 211, 291 N.W. 637; Meehan v. Marion Manor Apartments, 305 Mich. 262, 9 N.W.2d 534; Rector v. Ragnar-benson, Inc., 313 Mich. 277, 21 N.W.2d 129; Luteran v. Ford Motor Co., supra; Haggar v. Tanis, 320 Mich. 295, 30 N.W.2d 876; Daniel v. Murray Corporation of America, 326 Mich. 1, 39 N.W.2d 229.

To the above list there should also be added the more recent cases decided under circumstances quite analogous to those in the case at bar, where this Court has continued

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to adhere to the conditions theretofore announced, as to what must be shown in order that the employee may be entitled to compensation under the act. They are: Hickman v City of Detroit, 326 Mich. 547, 40 N.W.2d 722; Roblyer v. City of Kalamazoo, 327 Mich. 392, 41 N.W.2d 903; Tegels v. Kaiser-Frazer Corporation, 329 Mich. 84, 44 N.W.2d 880; Kelly v. Dixie Fuel & Supply Co., 329 Mich. 466, 45 N.W.2d 356; Stornant v. Licari-Packard Grosse Pointe, Inc., 332 Mich. 210, 50 N.W.2d 762; Saily v. 500 Bushel Club, 332 Mich. 286, 50 N.W.2d 781; Lewis v. Michigan Workmen's Compensation Commission, 335 Mich. 191, 55 N.W.2d 792; Campbell v. Secretary of State, 335 Mich. 237, 56 N.W.2d 84; White v. Public Service Commission, 338 Mich. 282, 61 N.W.2d 31.

An examination of the above decisions readily discloses the uniform rules which have been followed....

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