(concurring in remand). Baas v. Society for Christian Instruction, 371 Mich 622, Turner v. Consumers Power Company, 376 Mich 188, and now Howard, have brought up records disclosing that the appeal board, likened unto a jury, could in each instance have found controlling facts and inferences either way. The board in all three cases was consequently possessed of plenary authority to enter the respective orders awarding or denying workmen’s compensation. Which is to say *112precisely that in no one of the three cases did the board reversibly err.
This is the “any evidence” rule which limits the scope of judicial review under CL 1948, § 413.12 (Stat Ann 1960 Rev § 17.186). For discussion and application of it, see recent Coates v. Continental Motors Corporation, 373 Mich 461.
In Baas this Court erred when it refused to recognize the board’s aforesaid authority as fact finder. There a bare majority reversed the board’s award despite finding of the board, attested unanimously upon adequate as well as persuasive proof, that the purpose of Mrs. Baas’ trip back to school was definitely “twofold.” For the appeal board’s said finding, see Baas at 632.
With like evidentiary support the board found, in Turner, “that there was no necessity for decedent to do any work at home, and further that defendant employer neither expected nor authorized him to do so.” (Turner at 191.) The Court did not, therefore, err when it affirmed the appeal board’s denial of compensation as claimed by Mrs. Turner.
Now, in this case of Howard, the record shows that the appeal board found “no reason in the factual situation presented in this cause to make an exception to this sound general rule of law.” Such “general” rule was related by the board this way:
• “The Supreme Court has consistently held that, as a general rule, 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 employment. Lipinski v. Sutton Sales Co., 220 Mich 647; Stocker v. Southfield Co., 244 Mich 13; Dent v. Ford Motor Co., 275 Mich 39. See, also, ‘The Law of Workmen’s Compensation’ by Arthur Larson Yol. I, subparagraph 15, page 194 [195].”
*113If this Court could perceive no evidence in Baas, none that is, tending to support the appeal board’s finding of “out of and in the course of” injury, then within its fact-finding powers the board was surely entitled to find that Mr. Howard had failed to prove any more than that he was “merely” on his way back to work. Both injuries—Baas and Howard—-were sustained while the employee was on his (her) way to -work, traveling by automobile. Schoolteacher' Baas was carrying with her certain school paperwork which (with concurrence of her employer) she had done at home; paperwork which was requisite to the clay’s task ancl had to be gotten to school that morning. The board expressly so found. No such work had been done by Mr. Howard. He was carrying nothing, as he drove his car back to work,' which was requisite to resumption of duty by him for the defendant employer. Too, he was carrying nothing of value belonging to his employer and nothing needful to or for the employer’s business. And no claim in any such regard was or is made by him.
There is no way—plausible or implausible—to duck around Baas’ judicial error. The case should be reheard and set right, if for no other reason than that of its continuing impact below upon all present and future cases of alleged dual purpose travel by cmtomobile (see quotation from Turner below). Until it is, one can hardly blame the appeal board for pursuing Baas as indicative of what this Court wants done; for finding in these ever controversial “going and coming” cases, the travel being by one’s own cmtomobile, that the employee has failed to sustain his burden of proving to the satisfaction of the board a case of causal connection between employment and injury.1
*114The board’s view of Baas is now of record. It is quite understandable. I quote it from recent Turner v. Consumers Power Company, 376 Mich 188, 192, 193:
“While this matter has been pending before us our Supreme Court, in a 5-3 decision, reversed an award of compensation to a school teacher who was seriously injured while on her way to school. See Baas v. Society for Christian Instruction, 371 Mich 622. The majority held that the decision in Murphy v. Flint Board of Education, 314 Mich 226, another school teacher case, was controlling of the issue before it. Justice Black wrote not only a vigorous dissent but followed up with a supplemental opinion of like tenor. The majority and the dissenting opinions [of Baas] do not separate on the fact that in either the Murphy Case, supra, or the Baas Case there was a lack of knowledge or expectation of performance of duties at home but rather upon the question as to whether the traveling done by these plaintiffs truly was a hazard of the employment.”
I turn directly to this case. As I read its majority opinion, the board has found that Mr. Howard was “merely” on his way to work and that there was no “causal connection between his injury and his work.” Such negative findings are conclusive upon the judiciary no matter what our finding of facts might be were we entitled to act as factfinders in workmen’s compensation cases.
The analogy of suits for tort comes into play here. The question of causal connection is usually, if not always, a question of fact (Berry v. Visser, 354 Mich 38; Barnebee v. Spence Brothers, 367 Mich 46; Dismukes v. Michigan Express, Inc., 368 Mich 197). In workmen’s compensation cases the very first ques*115tion, whether the claimant’s injury arose “out of and in the course of” employment, is correlatively similar since it arises invariably upon proof of circumstances rather than direct proof. That is the case here. The testified circumstances do not establish, either way as a matter of law, that mutual intention of employer and employee which determines in “going and coming”—or “twofold purpose” ■—cases that the trip was or was not within the so-called ambit of employment. Such intention must be ascertained by resort to the process of drawing-permissible inferences from testified facts. That is the job of appointed fact finders, not Supreme Court Justices.
The question of causal connection is controlling in this case. It was resolved below against the plaintiff. He, bearing the burden of factual persuasion before the board,2 failed to convince, a majority of its members. Since this Court does not hear and decide de novo on certiorari to the board, affirmance is in order.
Supplement (December 1, 1965):
The Court having split November 2d, four members standing for affirmance and four for reversal, someone should break the deadlock. I therefore rise to vote for remand with instruction that the appeal board reconsider and decide anew in the light of Justice O’Hara’s writing for this case of Howard, writing which surely casts doubt on the value as precedent of the separate writings for reversal of the Baas Case. The appeal board should, if such is deemed advisable by its members, take and consider additional proof before making such new decision.
*116The practice employed here, of breaking a four-four deadlock, is the same as was employed by the writer in the Halfacre Case (Halfacre v. Paragon Bridge & Steel Company, 368 Mich 366, 389).
If- it was right to say as a matter of law (Baas at 655) that Mrs. Baas’ “accidental injury arose out of automobile travel, not out *114of the work she was required to do at home.”, then the fact-finding appeal board was possessed of right to find that Mr. Howard’s injury, arising as it did in the eourse of automobile travel, was causally disconnected with his employment.
From as far baek as McCoy v. Michigan Screw Co., 180 Mich 454, 458, tliis Court lias consistently held that “The burden of furnishing evidence from which the inference can be legitimately drawn that the injury arose 'out of and in the course of his employment’ rests upon the claimant.” See the list of cases eited under section 249, 19 Callaghan’s Michigan Digest, Workmen’s Compensation, pp 149, 150.