Claimant, a school janitor, slipped and fell on an icy sidewalk while going to work. The deputy commissioner, sitting as a board of arbitration, denied his claim for compensation, holding that his resultant injury did not arise "out of and in the course of his employment." On review this decision was affirmed by the commissioner and the latter's findings and order were in turn affirmed by the district court.
Claimant asserts: (1) That since the facts were undisputed, the question of compensability was one of law; and (2) that the undisputed facts show his injury arose out of and in the course of his employment. For the purpose of this appeal we assume, without deciding, that the record is such as to present a question of law. But see Davis v. Bjorenson, 229 Iowa 7,293 N.W. 829. That leaves only proposition (2) for consideration.
It is not necessary to recite the facts in great detail. Claimant's duties as janitor were the usual ones required of janitors of public buildings: sweeping floors, washing windows, replacing fuses and light bulbs, making minor repairs to the heating plant and other equipment; in the summer repairing floors, painting, etc., in preparing the building for opening of school in the fall; and in winter, firing boilers, shoveling snow, and, when sidewalks were icy, spreading ashes or salt upon them. He locked the building at night and ordinarily unlocked it in the morning.
There had in past years been a written contract of employment which provided that during winter months the building temperature be up to seventy degrees by nine o'clock, when school opened. This requirement was still adhered to after the written contract expired.
Claimant had no specified working hours but had learned by experience how early it was necessary to go to work in order to perform his duties. On March 13, 1944, the sidewalks *Page 993 were covered with ice when he arose at five o'clock a.m., which was his usual and customary time. On his wife's insistence he put a pair of old socks on over his rubbers. He lived approximately five blocks from the schoolhouse. On his way to work he slipped and fell and suffered the injury complained of.
He was a long-time, faithful employee, and required little if any supervision, as he knew what his duties were. At times the superintendent would have him do something and he was subject to the direction of the directors. A few times during his twelve years of employment he had been called upon to perform some service outside of customary hours. However, at the time of his injury he was not responding to any such call and had done nothing at home that morning in connection with his employment. When injured he was on his way to his place of employment at his usual time and in his customary manner.
[1] I. Section 85.3, Iowa Code, 1946 (section 1363, Iowa Code, 1939) makes compensable "all personal injuries sustained by an employee arising out of and in the course of his employment." Code, 1946, section 85.61 (section 1421 (6), Code, 1939) defines these words to include "injuries to employees whose services are being performed on, in, or about the premises * * * and alsoinjuries to those who are engaged elsewhere in places where theiremployer's business requires their presence and subjects them todangers incident to the business."
The words we have italicized above prescribe the only conditions under which injuries suffered en route to and from (but not on) the premises are compensable. Unless it can be fairly said the employee, while going to or from his regular place of work, is engaged in a place where his employer's business requires his presence, his injury en route is not compensable. It does not arise out of and in the course of his employment.
There is, of course, a difference between "arising out of" and "arising in the course of" employment and both must be established to warrant allowance of compensation. Christensen v. Hauff Bros., 193 Iowa 1084, 188 N.W. 851; Kyle *Page 994 v. Greene High School, 208 Iowa 1037, 226 N.W. 71. Text writers and courts are in substantial agreement that "arising out of" implies some causal relation between the employment and the injury; and that "arising in the course of" means arising during the period of employment and at a place where the employee may be performing the duties of his employment or doing something incident thereto. See 71 C.J. 647, 659, sections 397, 404; 28 R.C.L. 797, section 89; Bushing v. Iowa Railway Light Co.,208 Iowa 1010, 1018, 1019, 226 N.W. 719.
A case involving an injury from a "street accident" suffered while en route to or from work therefore requires a determination whether the employee was engaged in his employer's business at the time and whether there was causal relation between the injury and such employment. If the first condition be found not to exist it becomes unnecessary to consider the second.
II. The general rule is conceded to be that the course of employment commences after the employee reaches the premises where his actual work begins and is carried on and ceases when he leaves. In stating this general rule, the opinion in Kyle v. Greene High School, supra, 208 Iowa at page 1040,226 N.W. at page 72, seems to confuse the two requisites to compensability ("arising out of" and "arising in the course of") but the later discussion shows that the court was really considering whether the injury en route arose in the course of the workman'semployment. No question seems to have been raised as to whether there was any causal relation between the injury and the employment.
The opinion is clear in its statement of the exceptions to the general rule, viz., that the injury is compensable (as arising out of and in the course of employment) if the employee, when injured, "is on his way home after performing, or on the way from his home to perform, some special service or errand, or some duty incidental to the nature of his employment in the interest of, or under the direction of, his employer." (Italics supplied.)
It is significant that every case therein cited to illustrate *Page 995 the exceptions involved an injury suffered either while the employee was on a special mission apart from his regular employment: State Compensation Ins. Fund v. Industrial Acc. Comm., 89 Cal.App. 197, 264 P. 514; Stockley v. School District,231 Mich. 523, 204 N.W. 715; Sun Indemnity Co. v. Industrial Acc. Comm., 76 Cal.App. 165, 243 P. 892; Palmer v. Main, 209 Ky. 226,272 S.W. 736; City of Fremont v. Lea, 115 Neb. 565, 213 N.W. 820; or was engaged in regular work that had no particular situs but required him to travel from place to place: Katz v. Kadans Co.,232 N.Y. 420, 134 N.E. 330, 23 A.L.R. 401; Reese v. National Sur. Co., 162 Minn. 493, 203 N.W. 442; Chandler v. Industrial Comm.,55 Utah 213, 184 P. 1020, 8 A.L.R. 930.
In the Kyle case itself the decision is based squarely on the fact that the employee was going to the schoolhouse on a special service or errand incidental to, but outside the regular duties of, his employment. 208 Iowa at page 1041 et seq.,226 N.W. at page 73 et seq.
That is not the situation here. Claimant was, when injured, en route from his home to the schoolhouse to commence the performance of his regular duties. He left home at the usual hour and was traversing the regular route of his own selection. He had done nothing that morning in connection with his employment. His work had not commenced.
Three Iowa cases are cited to the proposition that where the employee is engaged in furthering the employer's business he is within the protection of the Workmen's Compensation Law. In none of them was he injured while going to or from the situs of his regular work. They are cases in which the peculiar nature of the employment required the employee to do the thing he was doing at the particular time and place. See Fintzel v. Stoddard Tractor Equip. Co., 219 Iowa 1263, 260 N.W. 725; Danico v. Davenport Chamber of Commerce, 232 Iowa 318, 5 N.W.2d 619; Linderman v. Cownie Furs, 234 Iowa 708, 13 N.W.2d 677. They are not in point here.
In apparent recognition of the difficulty of bringing appellant's case within any hitherto announced exception to the well-established "going and coming" rule it is argued that these facts are sufficient: *Page 996
"* * * that it was the duty of appellant to go to the school at about 5:00 A.M. in order to get the school plant ready for the day, that on icy days he had to render the special service of spreading ashes, cinders, or salt on the school walk, that he had no discretion about going, that on the morning of the accident traveling conditions were hazardous and that the injury resulted from such hazardous traveling conditions, constituted a special instance taking appellant's case out of the general rule of non-compensability for injuries sustained in going from home to the usual place of work."
Some of these circumstances would be pertinent to show causal connection between the employment and the injury if it wereestablished that the injury arose "in the course of theemployment." But none of them tends, in the slightest degree, to establish the latter requisite.
Four cases from other jurisdictions are cited as announcing exceptions to the general rule justifying appellant's claim here. Gelbart v. New Jersey Federated Egg Producers' Assn., 17 N.J. Misc. 185, 7 A.2d 636, perhaps goes further than any of the others but it still falls short. The employee, Gelbart, had a key to his employer's egg-grading station and it was his duty to open the business in the morning at the regular hour (between six and seven) and at other times on call. Other employees came to work at nine a.m. A manager had the only other key but usually arrived later in the day.
On the morning in question Gelbart inadvertently left his key at home and had to go back for it. A trucker who did some work for the employer picked him up on his way back home and after he procured the key they started toward the grading station. On this return trip the employee was killed in a traffic accident.
Whatever we may think of the soundness of the decision, the case is not analogous to appellant's case here. The employee was making a special trip when the accident occurred. That it was one made necessary by his own forgetfulness seems not to have mattered in the decision.
Kromley v. Board of Education, 13 N.J. Misc. 627, 180 A. 546, involved an injury suffered by a school janitor while *Page 997 going after his keys to make a voluntary emergency evening trip to the schoolhouse to check his fires because the night was extremely cold. Though voluntarily made, the trip was special and outside his regular duties. The decision falls within the rule of our own Kyle case, supra.
Cymbor v. Binder Coal Co., 285 Pa. 440, 132 A. 363, cited by appellant, was a case in which the employee was hired and paid extra wages to perform the special duty of returning to his employer's mine in the night to turn on the pumps so the water would be removed in time for regular operations to resume in the morning. The opinion points out in effect that the principal part of the special trips was the journey back and forth and held such journeys were a part of and in the course of his employment.
In Lang v. Board of Education, ___ S.D. ___, 17 N.W.2d 695, claimant was superintendent of the defendant school district. His duties were executive. He had no fixed hours and performed his duties when and where the occasion required. His employment had no exclusive situs. He performed some at home and had done so just previous to his injury en route to the schoolhouse.
There is no logical analogy between that case and this. Claimant here had no duties to perform, and had been performing none, away from the school premises. It was only true to a limited extent that he could select his own regular hours of work. Practically, the circumstances fixed the hours.
Davis v. Bjorenson, supra, 229 Iowa 7, 293 N.W. 829, and Marley v. Johnson Co., 215 Iowa 151, 244 N.W. 833, 85 A.L.R. 969, are cited by appellant but they involve facts and principles (not involved in, and not at all similar to, those here) which showed the employment had actually commenced when the injury occurred.
[2] Appellant's contention seems based on the proposition that if a workman's employment is such that he may be required to perform occasional special service which includes travel to and from the employer's premises, his regular trips are therefore a part of, and in the course of, his employment. We cannot sustain this contention. An employee who is paid a *Page 998 fixed salary not based on the number of working hours and who may be called on at any time for special service, but whose regular employment has a definite situs, is not necessarily "in the course of his employment" at all times.
Such an employee, when going to or returning from his regular work, is in exactly the same legal position as the day laborer who figuratively or literally punches a time clock. Whether either is to be held to be "in the course of his employment" must be left to future legislative definition. We cannot read it into the present statute.
In Nehring v. Minnesota Mining Mfg. Co., 193 Minn. 169, 171,258 N.W. 307, 308, that court draws the distinction applicable here. The employee in that case was regularly employed as a master electrician in his employer's factory. He worked regular hours in the factory but was on occasion required to make emergency repairs, necessitating extra trips. He was killed on one of these emergency trips while returning home after performing the necessary repair work.
His widow was allowed compensation but upon the express ground that his injury occurred while returning from the special mission. The court says:
"* * * had this accident occurred when Nehring, after finishing his regular day's work in the factory, was on his way to his home * * * his death would not be compensable, for it would not have been caused by an accident arising out of and in the course of his employment."
Clark v. Industrial Commission of Ohio, 55 Ohio App. 428, 430,9 N.E.2d 924, 925, seems exactly in point here. Claimant was a courthouse janitor. His contract of employment required him to "be on duty twenty-four hours each day" on a monthly salary. He was required to take care of the furnace in winter and to keep the building properly heated.
One night he left the fires banked and went home. The next morning he started to work about four o'clock and on his way to the courthouse fell from his bicycle and suffered injury. The industrial commission and the Court of Common Pleas having denied him compensation he appealed to the Court of Appeals. That court affirmed, on the authority of *Page 999 Industrial Commission v. Heil, 123 Ohio St. 604, 176 N.E. 458, saying:
"The mere fact that Clark had in his pocket the keys to the court house, could not alter the nature or purpose of his employment. As said in the Heil case, he could not possibly do any of the things he was employed to do until he reached the court house."
And in the Heil case, 123 Ohio St. at page 607,176 N.E. at page 459, the Ohio Supreme Court says:
"We are quite unable to see any substantial merit in the proposition that an employee whose duties have a fixed situs can be in the discharge of those duties when he is a mile away, traveling upon a public highway for the purpose of reaching his place of employment."
Heil was the manager of his employer's plant but had ho duties to perform until he reached it.
[3] We cannot conclude that claimant here was performing any duty incident to his employment when going to work in the morning any more than if he had been a day laborer whose working hours were fixed by contract. The situs of his work was fixed and he could do nothing until he arrived there. Assuming that he might on occasion be required to perform some special service or errand requiring his presence on the street for its performance, that was not his situation when he suffered this injury.
No case is cited that goes as far as we are asked here to go. We favor a liberal construction of the statute in the interest of the workman but we must keep within the limits fixed by the legislature. The statute cannot be enlarged by interpretation beyond its plain intendment. The Workmen's Compensation Law was not designed to establish a system of health or accident insurance.
Though it be conceded that the commissioner's decision is subject to review, his conclusion and that of his deputy and of the experienced trial court are entitled to more than casual consideration. We are convinced their decision is in accord with the intention of the statute and should be affirmed. *Page 1000 [4] The members of the court participating in consideration of the case being equally divided, the decision below is, by operation of law, affirmed. — Affirmed.
HALE, MANTZ, and WENNERSTRUM, JJ., concur.
MULRONEY, J., and GARFIELD, C.J., and BLISS and OLIVER, JJ., dissent.
MILLER, J., takes no part.