Whetro v. Awkerman

160 N.W.2d 607, 11 Mich. App. 89

Opinions

Burns, J.

Tke workmen’s compensation appeal board affirmed a referee’s award to plaintiff, a caretaker for Louva B. Awkerman. On leave granted, Mrs. Awkerman and ker workmen’s compensation carrier, tke Mickigan State Accident Fund, appeal from tkis decision.

Plaintiff and kis wife lived in a small cottage on tke premises of Mrs. Awkerman. As plaintiff went to tke basement of tke cottage on tke evening of April 11,1965, a tornado caused tke dwelling to collapse upon plaintiff. Altkougk defendants do not •agree tkat at tke time tke tornado struck plaintiff was “in tke course of kis employment” witkin tke terms of CLS 1961, § 412.1 (Stat Ann 1960 Rev § 17.151), tkey concede tkat tkis was a factual question wkick is not before tke Court. Tke sole issue raised by tke defendants is:

“Are injuries to an employee in tke course of kis employment considered to arise out of tke employ ment when they are caused by an act of nature or an act of God?”

The receipt of workmen’s compensation benefits is contingent upon, among other things, the existence of an injury “arising out of” the claimant’s employment. CLS 1961, § 412.1 (Stat Ann 1960 Rev §17.151). While the Supreme Court of Michigan has on 4 occasions considered the effect of this clause as it relates to lightning

Footnotes

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* it has never considered the effect of this clause as it relates to tornados. Therefore, we do not have any precedent in this State as to the interpretation of the clause “arising out of” the claimant’s employment where the injuries are connected with damages caused by a tornado.

There is a split of authority throughout the country on this issue. We hereby adopt the theory advanced by the supreme court of Massachusetts in Caswell’s Case (1940), 305 Mass 500, 502 (26 NE2d 328, 330) where a hurricane caused a brick wall to collapse on the claimant, and the court said:

“There is another principle upon which the employee, in our opinion, is entitled to Compensation. Unquestionably the injury was received in the course of Ms employment. The only other requirement is that'the injury be one ‘arising out of’ his employment. It need not arise out of the nature of the employment. An injury arises out of the employment if it-arises out of the nature, conditions, obligations or incidents of the employment; in other words, out of the employment looked at in any of its aspects. Thom v. Sinclair, [1917] AC 127, 142, 143. An employee who, in the course of his employment, is hurt by contact with something directly connected with his employment, receives a personal injury arising out of his employment, even though the force that caused the contact was not related to his employment. Thom v. Sinclair, [1917] AC 127, 134-136. Lord Atkin, in Brooker v. Thomas Borthwick & Sons (Australasia), Ltd., [1933] AC 669, 677, stated the principle thus: ‘If a workman is injured by some natural force such as lightning, the heat of the sun, or extreme cold, which in itself has no kind of connection with employment, he cannot recover unless he can sufficiently associate such injury with his employment. This he can do if he can show that the employment exposed him in a special degree to suffering such an injury. But if he is injured by contact physically with some part of the place where he works, then, apart from questions of his own misconduct, he at once associates the accident with his employment and nothing further need be considered. So that if the roof or walls fall upon him, or he slips upon the premises, there is no need to make further inquiry as to why the accident happened.’ ” (Emphasis supplied.)

Affirmed. Costs to appellee.

Holbrook, P. J., concurred with Burns, J.

Kroon v. Kalamazoo County Road Commission (1954), 339 Mich 1; Nelson v. Country Club of Detroit (1951), 329 Mich 479; Thier v. Widdifield (1920), 210 Mich 355; and Klawinski v. Lake Shore # M. S. R. Co. (1915), 185 Mich 643 (LRA 1916A, 342).