Reed v. Bliss & Van Auken Lumber Co.

• Decision Date: 19 December 1923
• Docket Number: No. 25.,25.
• Citation: 196 N.W. 420,225 Mich. 164
• Parties: REED v. BLISS & VAN AUKEN LUMBER CO. et al.
• Court: Michigan Supreme Court

225 Mich. 164

196 N.W. 420

REED

v.BLISS & VAN AUKEN LUMBER CO. et al.

No. 25.

Supreme Court of Michigan.

Dec. 19, 1923.

Certiorari to Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act (Comp. Laws, §§ 5423-5495), by Ella Reed, to obtain compensation for the death of Richard Reed, her husband, opposed by the Bliss & Van Auken Lumber Company, employer, and the Michigan Mutual Liability Company, insurance carrier. Compensation was denied, and applicant brings certiorari. Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.Purcell & Picard, of Saginaw, for appellant.

Beaumont, Smith & Harris, of Detroit (Albert E. Meder, of Detroit, of counsel), for appellees.

FELLOWS, J.

Defendant lumber company operates a lumber yard in Saginaw consisting of 20 acres. The generally used method of ingress and egress to and from the plant is through a gate opening onto Niagara street, a north and south street, 66 feet in width. While a few employés go across the river in boats and some of them go through the fence at other points, most of them use this entrance. It is also used by the company's customers and for general purposes, and the fire department uses it to get to the dock at the river. The fence at this point is of wire, and we do not understand that the gate is kept closed during operating hours. The Michigan Central Railroad runs on Niagara street; its main track being slightly east of the center of the street, a spur track running to the property of the Saginaw Manufacturing Company being east of the main track. There is a spur track running into the lumber company's property, but this is above the entrance and is not important here. Richard Reed, plaintiff's husband, was in the employ of the lumber company, as a lumber inspector. September 16, 1922, was a Saturday. The plant did not operate on Saturday afternoons. After Mr. Reed had completed his forenoon's work, he went to the office and got his pay check and that of a fellow workman named Moore, who was ill at home. While the parties are not agreed as to the exact distance from the office to the street, it is upwards of 200 feet. On coming out of the office Mr. Reed got into an automobile owned by Mr. Moore, and that day driven by his wife. He had for some few weeks come to his work and returned home in the Moore automobile, and there is some testimony tending to show that he paid Mr. Moore a stated sum weekly for such transportation. Mrs. Moore drove the automobile out through the gate into Niagara street, and when on the main track of the railroad they were struck by a fast train. Mrs. Moore was seriously injured, and Mr. Reed was killed. Plaintiff as sole dependent made claim against the lumber company for compensation, which claim was denied by the department of labor and industry. She here reviews such action, claiming that the department of labor and industry erroneously held that the accident did not arise out of and in the course of the employment.

An examination to the authorities is convincing that it is a general rule that an accident does not arise out of and in the course of the employment, when it occurs while the employé is on his way to work, before he has reached the premises of the employer, or when he is on his way home and has left the employer's premises. Mr. Bradbury, with the citation of numerous authorities (Bradbury on Workmen's Compensation [3d Ed.] p. 468), thus states the rule:

‘Ordinarily, when an employé is injured while traveling to or from his place of work on his employer's premises, and the employé is not paid for the time consumed in going and coming, the means of conveyance is not furnished by the employer, and the employé has departed from or has not yet reached the employer's premises, the injury does not arise out of the employment.’

And in Ruegg on Employers' Liability and Workmen's Compensation, 377, it is said:

‘In one sense, it may be said to be a part of his duty to get to such place, but if his method of traveling is not controlled by the employer, if he is a free agent, it is thought this qualified duty is not sufficient to raise, at the time, the relation of employer and workman.

‘The same may be said with respect to the time occupied in returning home from work, and of intervals allowed for meals when spent off the employer's premises.’

In Caton v. Summerlee & Mossend Iron & Steel Co., Ltd., 39 Scot. L. R. 762, in denying liability, it was said by the Lord Justice-Clerk:

‘The deceased at the time of the accident had ceased his work, had left the place where he did it, and was on his way home. He had at the time no duty to fulfill to his master, and his master had no duty to fulfill towards him. The relation of master and servant had ended for the day; he having fulfilled his work and left the place where his work was being done.’

And in Bell v. Armstrong, Whitworth & Co., Ltd., 12 B. W. C. C. 138, it was said by the master of the rolls:

‘It is said for her that the employers ought to be liable. The answer is that an accident of that sort does not arise out of and in the course of the employment. It is conceded, and is well established by authority, that if the employé met with a similar accident in going to the place of business in the morning, or at any time in returning home from the place of business, that would be outside the act, and no authority whatever has been produced to establish that an employé is entitled to compensation in respect of an accident occurring in the public street when the employé was not there on the employer's business, and when he was not there pursuant to any duty which he owed to the employer.’

In DeVoe v. N. Y. State Rys., 218 N. Y. 318, 113 N. E. 256, L. R. A. 1917A, 250, it was said:

‘The employé is not insured generally against accident while working for the street railway corporation. At home or on the street he may meet with accident not arising out of or in the course of his employment. The act does not cover such cases. The employé gets up in the morning, dresses himself, and goes to work because of his employment, yet if he meets with an accident before coming to the employers' premises or his place of work that is not a risk of his occupation but of life generally.’

This court has recognized this general rule. Hills v. Blair, 182 Mich. 20, 148 N. W. 243;Guastelo v. Michigan Central R. Co., 194 Mich. 382, 160 N. W. 484, L. R. A. 1917D, 69;Lipinski v. Sutton Sales Co., 220 Mich. 647, 190 N. W. 705. But like most general rules this one has its exceptions which was noted in the Hills Case, where it was said:

‘In applying the general rule that the period of going to and returning from work is not covered by the act, it is held that the employment is not limited by the exact time when the workman reaches the scene of his labor and begins time, space, and opportunity before and sonable time, space, and opportunity before and after, while he is at or near his place of employment.’

It is insisted by plaintiff's counsel that the case falls within the exception rather than the rule, while defendant's counsel insist that it falls within the rule. Defendant's counsel also insists that, if it is within the exception, the commission has by its...