Dyer v. Sears, Roebuck & Company

85 N.W.2d 152, 350 Mich. 92, 1957 Mich. LEXIS 258

Opinions

Black, J.

{after stating the facts). This case revives the contentious debate our reports disclose since the tenets of Haller v. City of Lansing, 195 Mich 753 (LRA1917E, 324) (and Brink v. J. W. Wells Lumber Co., 229 Mich 35) came to veiled doubt in Luteran v. Ford Motor Co., 313 Mich 487. Prior to Luteran’s premonitory prelude — that Haller “goes to the extreme” — , and at least until Daniel

* and Hickman* were handed down, onr decisions definitely and relevantly committed the workmen’s compensation act to that interpretation which accorded then and accords now with the known weight of American and English authority. See dissenting opinions in Salmon v. Bagley Laundry Company, 344 Mich 471, 475; and Mack v. Reo Motors, Inc., 345 Mich 268, 270. Our respects were duly paid to Haller — and Haller was declaredly followed — in Amicucci v. Ford Motor Co., 308 Mich 151, wherein it was said (p 154 of report):

“The phrase, ‘arising out of and in the course of his employment’ (CL 1929, §8417 [Stat Ann §17.-151]) was adopted in identical words from the English workmen’s compensation act, ‘and presumably with the meaning previously given it there.’ Hopkins v. Michigan Sugar Co., 184 Mich 87, 90 (LRA 1916A, 310). Its meaning was fully discussed in the Hopkins and subsequent cases, and in Haller v. City of Lansing, 195 Mich 753 (LRA1917E, 324), a number of applicable English authorities are reviewed.”

With changes of personnel here, unfortunate changes of interpretive thought reared themselves. No intervening amendment of the statute brought this about. Inapposite yet contagious notions recorded in Daniel, Hickman and Pilgrim†—imported from Massachusetts‡ and renounced this day in Freiborg v. Chrysler Corporation, 350 Mich 104, —descended unnoticed on Haller and Brink and resulted finally in flat repudiation of both.

Such is the vexing hotchpotch to which legislative attention and resolution was directed in 1954. The result appears in an amendment that year of section 1 of part 2 of the workmen’s compensation act, reading as follows:

“Every employee going to or from his work while on the premises where his work is to be performed, and within a reasonable time before and after his working hours, shall be presumed to be in the course of his employment.” (CL 1948, § 412.1, as amended by PA 1954, No 175 [CLS 1954, § 412.1, Stat Ann 1955 Cum Supp § 17.151].)

It will be noted that the substance and wording of this amendatory provision has been taken from language appearing in Brink (presently quoted). By enactment thereof the legislature calls, rather plainly, for judicial return to that which its membership intentionally ordained in 1912, according to early rulings of this Court. Haller (1917) and Brink (1924) were written into our reports by distinguished predecessors composing the so-called Fellows Court. Presumably, they knew more about the background and intended scope of the pivotal phrase—“arising out of and in the course of his employment”—, found in original and present section 1 of part 2 of the workmen’s compensation act, than we do. The Court members of that day “were there,” as the saying goes, and they tell us through Haller and Brink of original and steadfast legislative will that such phrase extend its protective range to a reasonable time and space for the employee to approach and leave the locality or zone of his work. This is plain utterance, understandable to lay and professional folk alike, and it should remove some of the tort-shaped barnacles we have gratuitously fastened in recent years to the hull of workmen’s compensation. I suggest, in these circumstances, that the amendatory provision of 1954 be treated as a message of courtesy, arriving here from a coordinate branch of government, purposed in the way of intent toward restoration of that which we have er-rantly excised from remedial legislation.

Our duty in these compensation cases is effectuation of the legislative intent. We may perform it here with the help of Haller-and Brink, irrespective of applicability to this case of that which became effective, as an amendatory statute, after Esther Dyer’s injury was sustained. I vote, then, to resurrect Haller and Brink; to implement the quoted amendment by overruling Daniel and its progeny including Salmon and Mack, and to reinstate for applicability to cases such as we have at bar Brink’s original and rightful interpretation of said section 1. That interpretation, which is now reinforced by the foregoing amendment of 1954, is quoted from Brink (pp 36-38 of report) as follows:

“Plaintiff was on the premises of the employer, •going from his work, leaving within a reasonable time, following a customary and permitted route off the premises, and in the immediate vicinity of his labor. It is a general rule that an employee, under such circumstances, is still in the course of his employment. * * *

“In going to and from his place of work upon the premises owned or controlled by his employer, an employee is deemed as a general rule to be engaged in the employment. * * *

“The employment is not limited by the exact time when the workman reaches the scene of his labor and begins it, nor when he ceases, but includes a reasonable time, space, and opportunity before and after, while he is at or near his place of employment. * * *

“The protection of the law extends to a reasonable time and space for the employee to leave the locality or zone of his work and while he is in proximity, approaching or leaving his place of employment by the only means of access thereto.”

Affirmed.

Smith, Edwards, and Voelker, JJ., concurred with Black, J. Kelly, J., concurred in the result.

Daniel v. Murray Corporation of America, 326 Mich 1.

Hickman v. City of Detroit, 326 Mich 547, 550.

Pilgrim v. Menthen, 327 Mich 714.

See Salmon, dissent, pp 490, 491 of report.