The controlling statute, after interpretation, reads as follows: "The words `arising out of and in the course of the employment' as used in this act * * * shall not include injuries to any workman occurring while on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which injury is not the employer's negligence."
It is plain that when the injury occurs after the workman has left his duties, negligence of the employer, proximately causing it, is made an essential element of compensability. Is it the sole element; or is it additional to the usual requirement that the injury shall have arisen out of and in the course of the employment? My brethren hold the latter view. I hold the former.
My view is derived from the statutory provision quoted. The converse of that provision is that the words "arising out of and in the course of the employment" shall include injuries occurring to a workman on his way to assume or after leaving his duties, *Page 147 the proximate cause of which injury is the employer's negligence.
If this was intended, negligence has been made the sole criterion in this class of cases, and we cannot deny compensation because we cannot say, logically, and according to the course of decision, that the injury arose out of and in the course of the employment. By the statute, in this class of cases, the injury isdeemed to have arisen out of and in the course of employmentif proximately caused by the employer's negligence.
My brethren admit that this meaning is that which naturally suggests itself. They go so far as to say that "the subsection, standing alone, not only is susceptible of such construction, but seems to mean that very thing." They shrink from adopting it, however, because of its claimed far-reaching effects, as illustrated by appellant's suppositions case, and because of the anomaly of finding negligence injected into a compensation statute.
I think there has been exaggeration of the far-reaching results of this natural interpretation. In my judgment, appellee has correctly suggested that the "negligence" contemplated by this provision must have occurred in the conduct of the employer's business. If the injury occur when neither the workman nor the employer is in the course, the one of the employment or the other of the business, they would be so plainly strangers to each other on the occasion and with respect to the injury that it would be carrying literalism to the point of absurdity so to interpret the statute as to deprive the employer of the common-law defenses to negligence, or as to limit the workman in his recovery to sums which may be awarded under the statute.
Nor does it follow that "neither lapse of time nor circumstance stops operation of the provision, after the workman shall have left his duties." The word "after" may include all subsequent time, and even eternity; but, obviously, it does not. I venture to say that no court would hold that it could survive the termination of the contract of employment. Manifestly, the statute contempates that the situation "after leaving his duties" shall be interrupted each day. It cannot survive the recurrence of the situation "while on his way to assume the duties of his employment." Whether the one must each day necessarily merge into the other, or whether the first may be otherwise interrupted, are questions we may well leave for decision as the facts of particular cases come before us. I see in this case no reason to suppose that the deceased, being on his way from the place of his employment to his home, was not in the situation governed by the provision.
It is true, generally, that negligence has no place in compensation statutes. But my brethren have not succeeded in removing the anomaly. And I am not impressed that their view is more consistent with the general principles of compensation. It is no more incongruous, as I see it, to say that a workman injured, after leaving his duties, by the employer's negligence, shall be compensated, regardless of whether the injury arose out of and in the course of the employment, than *Page 148 to say that if it did arise out of and in the course of the employment, he shall not be compensated unless he can also show the employer's negligence as the proximate cause.
Under the theory of my brethren, the beneficiaries of the act and the courts are left to struggle with the question, so long and often troublesome, whether, under given circumstances, a workman, on his way to assume the duties of his employment, or after leaving such duties, is in the course of employment, and whether the injury then occurring arose out of it. It merely adds a new complication and imposes a new burden upon the workman.
It may well be supposed that the Legislature, in the interest of easy comprehension and certainty of decision, desired to avoid the hairsplitting which had long attended the decision of this troublesome question. The situation of the workman on his way to and from his duties had long been a no man's land. If an injury there occurred, it was exceedingly difficult for the interested parties to ascertain their legal rights. The Legislature, in adopting a public policy for this state, chose the quite reasonable, if anomalous, expedient of protecting the workman in the no man's land against the employer's negligence, and against it alone.
So, if there could be any justification, I find no advantage in rejecting the reasonably plain meaning of the statute.
On this question of interpretation, it might be proper that I yield to the well-considered and strongly held views of my brethren. In doing so, however, I should be constrained to disagree with them in the decision of this case. I have found no reason or authority upon which to conclude that the injury in question did logically, or according to sound decisions, arise out of and in the course of the employment. The injury so arose merely because, having been caused by negligence, the statute deems it to have so arisen. As well illustrating my views I cite Hallett Construction Co. v. Industrial Commission of Wisconsin,201 Wis. 182, 229 N.W. 547; Hills v. Blair, 182 Mich. 20,148 N.W. 243; Erickson v. St. Paul City Railway Company, 141 Minn. 166, 169 N.W. 532.
Under my theory of the statute, the judgment should be affirmed. Since that is the only ground upon which I can concur in that result, I have felt called upon to set forth my views at such length.