Luteran v. Ford Motor Co.

North, J. In consequence of a personal injury suffered by plaintiff he was awarded compensation. His employer, defendant herein) has appealed. The sole question presented is stated in the briefs as follows : “Did the department of labor and industry err in holding that the injury which plaintiff received arose ‘out of’ his employment?” Decision will turn on whether the holding of the compensation commission * is supported by any *489 competent evidence. If therg is such, evidence the commission’s determination is final and binding on this appeal in tbe nature of certiorari. 2 Comp. Laws 1929, § 8451, as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8451, Stat. Ann. 1945 Cum. Supp. §17.186). Tbe material facts are not in dispute. The controversy is' over tbe conclusion of law to be drawn from tbe facts. Plaintiff bad been in defendant’s employ as a die-maker for more than a year prior to May 25, 1944, tbe date of tbe accident. Ilis working hours were from 7:00 a. m. to 4:30 p. m., with a lunch period from 12 to 12:30. He received no pay for this half hour period. After eating bis lunch on tbe date noted, plaintiff was watching other employees who were playing ball in a roadway or traffic lane on the employer’s premises and just outside tbe building in which plaintiff worked. He was standing somewhat near another employee who was in tbe act of batting tbe ball. Tbe ball bat slipped out of the bands of tbe batter and struck plaintiff in tbe face as be was stooping over to light a cigarette. It is for tbe injury plaintiff thus sustained and for expenses incident to tbe hospital and medical treatment that compensation was awarded. Tbe record fully sustains tbe following from tbe opinion filed by tbe compensation commission. “It was customary for employeés during tbe noon intermission to play baseball or football on tbe premises in tbe area where plaintiff was injured. In fact, tbe foremen participated in tbe games. Tbe necessary equipment for such activities was furnished by tbe employees. Tbe activity, admittedly, was neither sponsored nor encouraged by tbe Ford *490 Motor Company. On the other hand, it was not prohibited.” As further bearing upon the factual situation the following is noted from plaintiff’s brief: “Plaintiff remained on the defendant’s property because he was restricted as to movements during the noon lunch period. He could not leave the premises without securing a pass nor did he have sufficient time to leave the premises and return if he had been permitted to do so.” Both plaintiff and the compensation commission, in support and justification of the award, rely very much on our decision in Haller v. City of Lansing, 195 Mich. 753 (L. R. A. 1917 E, 324). While we are not disposed to overrule or depart from the holding in the Haller Case, admittedly it is a borderline decision which goes to the extreme, and in the just administration of the workmen’s compensation law ought not to be extended. Haller, like plaintiff herein, was injured while on the employer’s premises during the noon lunch period. Pie and other employees were' about to eat their lunch in a tool-house, where oils, grease, gasoline, et cetera, were stored. A gas explosion occurred when Plaller was lighting his pipe. Obviously the presence of gas was due to materials stored in connection with the employer’s business, and the explosion which resulted was caused by the failure of the employer to provide the employee with safe surroundings. Since it was held, and we think properly so, that the relation of employer and employee, under the circumstances, continued during the lunch period, it was adjudicated that Haller’s injury caused by the explosion of gas arose out of the employment. But it cannot be said in the instant case that the accident which happened to plaintiff, who as a spectator *491 was viewing a ball game and standing in dangerous proximity to another employee who was swinging a baseball bat, had even a remote relation to defendant's business. Plaintiff’s accident did not arise out of his employment any more than as though he had been stricken, down by a bolt of lightning. Thier v. Widdifield, 210 Mich. 355. Nor is plaintiff any more entitled to compensation than the employee who was swinging the bat would have been if he had sustained a hernia by reason, of an excessive effort in batting. In plaintiff’s brief it is urged that: “Plaintiff’s injury was the result of an act performed for the mutual benefit of the employer and its employees and consequently the injury arose out of the employment.” The Michigan case cited in support of the above is Mann v. Board of Education of City of Detroit, 266 Mich. 271. That case is clearly distinguishable from the one under consideration in that Mann at the time of his accident was unquestionably engaged in a matter of “school business” in which he was regularly employed. We have heretofore commented on the Mann Case as follows: “The purpose of his trip was within the scope of his work, he went on school time and the trip was approved by his school superintendent.” See Rector v. Ragnar-Benson, Inc., ante, 277, 284. The facts in the instant case are such that we think it cannot be said the business of the defendant employer was benefited by plaintiff’s being a spectator for a few minutes at the baseball activities of fellow employees or by plaintiff’s having placed himself in dangerous proximity to another employee who was swinging a baseball bat. There is no proof in the record that defendant’s business was beneficially affected by plaintiff’s conduct in the above particular. As was said in Thier v. Widdifield (syl *492 labus), supra, the factual contention asserted by plaintiff is based upon “mere conjecture and speculation, rather than upon evidence. ’ ’ That the recreational activities in the particular noted, while permitted by the employer which at that time had not even provided a baseball field, were matters in which the employees, rather than the employer, were concerned is emphasized by plaintiff’s own testimony. In substance he testified the minute the bell rang notifying the - employees that the lunch hour had started, plaintiff and other employees were on their own and could do as they pleased. Neither the bat nor the ball was provided by the company. “Nothing has ever been said or done to the employees to encourage these ball games. * * * During this 30 minutes (lunch period), you were free to do and act as you pleased.” On this phase of the case, it is important to note that the compensation commission, referring to playing ball, expressly found: “This activity, admittedly, was neither sponsored nor encouraged by the Ford Motor Company.” In the light of the foregoing and the contents of the record before us, we are not in accord with plaintiff’s contention that his injury “was the result of an act that had become an incident of his employment by reason of defendant’s acquiescence and acceptance thereof.” In this latter particular plaintiff cites Amicucci v. Ford Motor Co., 308 Mich. 151, and Schlickenmayer v. City of Highland Park, 253 Mich. 265. But each of these cases differ materially from the instant case in that the injury sustained did not arise incident to mere recreational activities during a period of nonemployment. Instead, the accident in each of the two cited cases occurred while the employee was at his place of employment and was engaged in an activity normally incident thereto. *493 The instant ease is more nearly in the field of onr decision in Clark v. Chrysler Corp. 276 Mich. 24, wherein we reversed an award to Clark. The syllabus reads: “Optional gymnasium exercises in gymnasium provided by employer, while desirable, held, not to be a part of employment of member of factory police force so that a common mishap in indulgement is an injury arising out of and in the course of employment.” In the prevailing opinion, written by the late Justice Wiest, it is said in the Clark Case: ‘ ‘ The employer provided a place for recreation of employees and left the method and means of enjoyment to the will of each individual. It may be true that the benefit derived by a user of the place not only tended to improve him physically but, as well, to create a more friendly relation between employer and employee, but such physical betterment and emotional result, while desirable, do not attach to the contract of employment.” Obviously the Clark Case was open to the view and contention that it was a mutual benefit to the employer and employee that the latter should take advantage of gymnasium exercise, and. also that such exercise under the circumstances had become an incident of the employment; but nonetheless it was held that Clark’s injury was not compensable. Notwithstanding plaintiff’s claim to the contrary, the Clark Case is not distinguishable from the instant case on the ground that activities in the gymnasium occurred “after working hours.” Decision therein was not based at all upon that circumstance. “An injury ‘arises out of’ the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection *494 between the conditions under which the work is required to be performed and the resulting injury^ (2 Comp. Laws 1929, §8417 ).” Rucher v. Michigan Smelting & Refining Co. (syllabus), 300 Mich. 668. In a recent decision of this Court the following observations are made: “We have repeatedly held that the question 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. No two cases are precisely alike in all respects. # # # “The workmen’s compensation law is not designed as a complete substitute for life insurance, or sick and accident insurance, for employees, nor can sympathy be allowed to broaden the express statutory provisions of the workmen’s compensation law: It provides that the injury (to be compensable) must arise out of and in the course of the employment.” Rector v. Ragnar-Benson, Inc., supra, 281, 285.- In the instant case there was no competent testimony tending to prove that plaintiff’s injury “arose out of” his employment. The award of the compensation commission is reversed. Costs to appellant. Butzel, C. J., and Carr, Bushnell, Sharpe, Boyles, Reid, and Starr, JJ., concurred. Footnotes [*] The so-called compensation commission of the department of labor and industry has been granted the duty of administering the *489 workmen’s compensation law formerly reposing in the industrial accident board. See 2 Comp. Laws 1929, §§ 8310, 8312, as amended by Act No. 241, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8310, 8312, Stat. Ann. 1945 Cum. Supp, §§ 17.1, 17.3).—Reporter.