Plaintiff's injury did not arise out of and in the course of his employment and for that reason the award should be set aside. The accident occurred after plaintiff's work for his employer was ended for the day. He was on his way home after leaving the place of his work and had no further work or duties to perform for his employer on the day he was injured. This case is analogous to the rule laid down by this Court in Pearce v. Michigan Home Training School, 231 Mich. 536, and many other decisions of this Court denying compensation on the ground that there was no causal connection between the injury and the employment. This Court has consistently held that an injury to an employee while merely on his way to or from work, without any causal connection between his injury and his work, and without any duty to perform at that time for the employer, does not arise out of and in the course of the employment. A few of such cases are as follows: Lipinski v.Sutton Sales Co., 220 Mich. 647; Stocker v. Southfield Co.,244 Mich. 13; Dent v. Ford Motor Co., 275 Mich. 39; Shane v.Alexander, 277 Mich. 85; Furino v. City of Lansing, 293 Mich. 211; Simpson v. Lee Cady, 294 Mich. 460; Rucker v.Michigan Smelting Refining Co., 300 Mich. 668; Meehan v.Marion Manor Apartments, 305 Mich. 262; Rector v.Ragnar-Benson, Inc., 313 Mich. 277; Murphy v. Board ofEducation of the School District of the City of Flint, 314 Mich. 226; Haggar v. Tanis, 320 Mich. 295; Trumble v. MichiganState Police, 325 Mich. 237.
In the above cases, based on the same question on which decision depends in the instant case, this Court has held that the injury did not arise out of and in the course of the employment.
In Favorite v. Kalamazoo State Hospital, 238 Mich. 566, relied upon by the commission in awarding compensation in the case at bar, the employee, a *Page 7 nurse who was off duty but at the time subject to call for work by the employer, fell and was injured while going from the building where she worked, to the nurses' home on the hospital grounds. She was required to live at said home, and was subject to emergency call for work at any time. She was still within the ambit of her employment when injured. The difference between that situation and the case at bar is obvious. In the case now before us plaintiff's work was ended for the day, and he was on his way home from work without further duties for his employer when injured by a fall that had no possible causal connection with his employment. Under our decisions, the mere fact that he fell and was injured while in a parking lot maintained on the employer's premises for the use of the employee is not sufficient to establish a causal connection between the injury and his employment.
I agree with Mr. Justice BUSHNELL that in the Pearce Case (1935), supra, this Court followed the reasoning of theMcNicol's Case, 215 Mass. 497 (102 N.E. 697, LRA1916A 306), decided in 1913. In 1941 Mr. Justice BUSHNELL, writing for the Court in Appleford v. Kimmel, 297 Mich. 8, also quoted from the McNicol's Case and recognized its rule as the law of this State. Since the McNicol's Case was decided by the Massachusetts supreme court, the statute law of that State was changed in 1927, and in 1945 as an apparent consequence of such change that court in deciding the Rogers's Case (318 Mass. 308 [61 N.E.2d 341, 159 ALR 1394]), liberalized its holding in theMcNicol's Case in accordance with the statute. The Rogers'sCase, relied upon by Mr. Justice BUSHNELL as the authority for a new rule to be adopted in this State, is not controlling here. Unlike Massachusetts, the statute law of this State has not been changed in that respect.
For that reason this Court does not adopt the test *Page 8 used by the Massachusetts supreme court in the Rogers's Case,supra, namely, that the right to compensation is to be measured by whether the injury was sustained while on the premises of the employer furnished by the employer for the use of its employees. In that case the employee was injured while on such parking lot preparatory to going to work. The Massachusetts statute (see 4 Annotated Laws of Massachusetts, 1948 Cum Supp, ch 152, § 26) allows compensation not only where an employee receives a personal injury arising out of and in the course of his employment, but also allows compensation for a personal injury "arising out of an ordinary risk of the street" while engaged "in the business affairs or undertakings of his employer;" and it expressly provides for compensation while using a motor vehicle in the performance of work "in connection with" the business affairs of his employer. In the Rogers's Case the Massachusetts supreme court held that an employee was entitled to compensation who had received a personal injury on a parking lot owned and provided by the employer for the use of its employees and while using a motor vehicle in going to or from work; that he was engaged in performance of work in connection with the business affairs or undertakings of his employer. Under the statute law of that State, the test followed by the Massachusetts supreme court is whether the employee at the time of his injury was performing some act "pertaining" to, or "incidental" to, his employment.Nagle's Case, 310 Mass. 193 (37 N.E.2d 474); Kubera's Case,320 Mass. 419 (69 N.E.2d 673). There is no such provision in the Michigan statute and the Rogers's Case, supra, is not a precedent to be followed in this State under our statute law. In fact, our decisions are to the contrary.
The liberal provisions of the Massachusetts statute above referred to were added to the Massachusetts *Page 9 workmen's compensation law in 1927 (Massachusetts Acts and Resolves 1927, ch 309, § 3; Acts and Resolves 1930, ch 205). Prior to that time the Massachusetts supreme court adhered to the rule of the McNicol's Case, supra, still followed by this Court. In the McNicol's Case, decided September 12, 1913, that court said:
"In order that compensation may be due the injury must both arise out of and also be received in the course of the employment. Neither alone is enough.
"It is not easy nor necessary to the determination of the case at bar to give a comprehensive definition of these words which shall accurately include all cases embraced within the act and with precision exclude those outside its terms. It is sufficient to say that an injury is received `in the course of' the employment when it comes while the workman is doing the duty which he is employed to perform. It `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. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises `out of' the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in *Page 10 a risk connected with the employment, and to have flowed from that source as a rational consequence."
The test thus applied in Massachusetts is still followed in this State. The McNicol's Case, supra, was quoted and relied upon by this Court in 1925 in Pearce v. Michigan Home Training School, supra. The Court said:
"Defendants insist that the death of Mrs. Burke did not arise out of or in the course of her employment. Other points are also raised, but we need not consider them as it is clear upon this record that her unfortunate death did not occur in the course of her employment. She had finished her work for the week, had left the premises of her employer and was at least a quarter of a mile away; she was in the performance of no duty to her employer but upon a mission entirely of her own; she was mistress of her own time and could go and come as she pleased. We have followed and quoted the rule laid down by the supreme court of Massachusetts in McNicol's Case, 215 Mass. 497 (102 N.E. 697, LRA1916A 306)."
In Haggar v. Tanis, supra, this Court set aside an award of compensation to an employee whose duties were to care for the furnaces located in 3 separate buildings, all of which were located on the east side of South Burdick street in Kalamazoo. While the employee's working hours were from 6 a.m. to 9 or 10 p.m., he always went to a restaurant for his meals. During the hours of his employment he was injured on Burdick street while crossing from the west to the east side after going to a restaurant for his lunch. Mr. Justice NORTH, writing for the Court, discussing and quoting from many decisions of this Court, in a unanimous opinion concluded as follows (syllabi):
"To arise `out of' the employment the injury sustained must have a causal connection with the work *Page 11 to be performed; must be one which follows as a natural incident to the employment, be connected with it, and not the result of a risk disassociated therefrom (CL 1929, § 8417, as amended by PA 1943, No 245*).
"An injury is received `in the course of' employment, as that term is used in the workmen's compensation act, when it comes while the workman is doing the duty which he is employed to perform (CL 1929, § 8417, as amended by PA 1943, No 245*).
"Under the test that an injury, to be compensable under the workmen's compensation act, must have arisen out of and in the course of the employment, an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment would not be compensable (CL 1929, § 8417, as amended by PA 1943, No 245*).
"Plaintiff, a fireman for owner of three buildings some four blocks apart but all located on the east side of a street, was not entitled to workmen's compensation by reason of such employment for injuries received while returning easterly across such street after eating his evening meal since his injury did not arise out of nor was it in the course of his employment (CL 1929, § 8417, as amended by PA 1943, No 245*)."
In 1941, Mr. Justice BUSHNELL, writing for the Court inAppleford v. Kimmel, supra (297 Mich. 8), referred with apparent approval to many decisions of this Court and also the Massachusetts decision in the McNicol's Case, supra. The test applied and followed was not where the injury occurred, butwhether it occurred while the employee was still within the ambit of his employment. The plaintiff was employed as assistant manager of a theater to handle disturbances and call the police if necessary. *Page 12 On 2 different occasions several patrons had been ejected from the theater because of making a disturbance, and following the second occasion the disturbers attacked him on the street shortly after he had left the theater, after demanding that he apologize for the ejection. Conceding that it was a borderline case, the Court concluded that there was a sufficient causal connection between the injury and the performance of plaintiff's duties for his employer. The test used was not as to where the injury occurred; but was whether the employee was still within the ambit of his employment. Citing cases to that effect, the Court said:
"No hard and fast rule can be laid down to cover all such situations. While it is generally held that injuries to an employee, incurred while going to and leaving the place of employment, are not compensable, exceptions arise because of the circumstances of the particular case. Morey v. City of BattleCreek, 229 Mich. 650 (38 ALR 1039). See, also, Kunze v.Detroit Shade Tree Co., 192 Mich. 435 (LRA1917A 252); Clifton v. Kroger Grocery Baking Co., 217 Mich. 462; and Simpson v.Lee Cady, 294 Mich. 460. See annotation of authorities on compensation for an assault arising out of and in the course of employment in 112 ALR 1258 et seq.
"The facts presented in this record sustain the finding of the department of labor and industry that plaintiff's injury aroseout of and in the course of his employment."
The test followed by the commission in the instant case, under the Massachusetts rule, and which we are asked to adopt, was whether the employee was injured while on property owned and furnished by his employer as an "incident" of the employment for the benefit of the employee. In this State the test that has been followed is whether the employee, regardless of where his injury arose, either on or off *Page 13 the premises of his employer, was injured while within the ambit of his employment, and whether there was a causal connection between the injury and the employment. The primary test under our statute is not where the injury occurred, but whether his injury arose out of and in the course of his employment. An employee may not be entitled to compensation although his injury arose while on the premises of his employer which were furnished by the employer for the use of the employee. In Clark v. Chrysler Corporation, 276 Mich. 24, this Court set aside an award of compensation to an employee who was injured after his time for work had ended, by slipping on the cement floor of a gymnasium on the employer's premises furnished by the employer for the use of its employees. The employee was there for his own purposes, and his injury did not arise out of and in the course of his employment. The same rule was followed in Horvath v. LaFond, 305 Mich. 69, where an award of compensation was set aside although the injury occurred on the premises of the employer and actually within the hours of employment in the business of the employer, where the employee was killed while assaulting a fellow employee in an argument connected with their work. The same result was reached by this Court in Holloway v. Ideal SeatingCo., 313 Mich. 267, where an employee was denied compensation, although injured while on the premises of his employer during the hours of his employment by attempting to operate a machine he had been expressly instructed not to use. In Luteran v. Ford MotorCo., 313 Mich. 487, an employee was injured while on the premises of his employer, during the noon lunch hour, while watching other employees playing baseball. The injury did not "arise out of" the employment, i.e., there was no "causal connection." The same rule *Page 14 was followed in Trumble v. Michigan State Police, supra, decided June 29, 1949.
We have also on many occasions allowed or upheld an award of compensation when the injury occurred within the ambit of the employment, although the employee was injured while not on the premises of the employer. See Mann v. Detroit Board ofEducation, 266 Mich. 271. Injuries to truck drivers, while on the public highway performing duties for the employer and on route within their employment, have been held compensable; while injuries which have occurred while the driver was off route and on his own business or pleasure, have been held not to have arisen out of and in the course of the employment. Conklin v.Industrial Transport, Inc., 312 Mich. 250.
The fundamental test in this State is that the injury, to be compensable, must have arisen out of and in the course of the employment — there must be some causal connection between the injury and the employment more than the mere fact that the employee was on premises of the employer which had been furnished by the employer for the use and benefit of the employee as an "incident" of the employment. That is not enough.
Reversed and remanded for entry of an order denying compensation.
SHARPE, C.J., and REID, NORTH, and DETHMERS, JJ., concurred with BOYLES, J.
* CL 1948, § 412.1 (Stat Ann 1947 Cum Supp § 17.151). — REPORTER. *Page 15
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