Le Vasseur v. Allen Electric Co.

Dethmers, C. J.

(dissenting). I do not concur in affirmance. Mr. Justice Butzel and plaintiff stress the special mission doctrine. "What is its significance? It is held generally that injuries sustained by employees while en route to or from work do not arise out of and in the course of their employment. Daniel v. Murray Corporation of America, 326 Mich 1, 6, and cases there cited. An apparent exception is noted in the case of the special mission, a brain child of judicial construction not mentioned in the statute. The theory is that while traveling en route to or from work on a special mission the employee is actually in the performance of duties for his employer and that, therefore, an injury then sustained arises “in the course of” his employment. Touching on whether it also arises “out of” his employment, this Court has held that it does, if caused by one of the ordinary hazards of the street or traffic or of the place where or of the means by which the mission is performed, such hazards being deemed connected with and incident to the employment. Kunze v. Detroit Shade Tree Co., 192 Mich 435 (LRA1917A, 252); Clifton v. Kroger Grocery & Baking Co., 217 Mich 462; Arnested v. McNicholas, 223 Mich 488; Stockley v. School District No. 1 of Portage Township, 231 Mich 523 (24 NCCA 170); Favorite v. Kalamazoo State Hospital, 238 Mich 566; Widman v. Murray Corporation of America, 245 Mich 332; Morse v. Port Huron & Detroit R. Co., 251 Mich 309; Konopka v. Jackson County Road Commission, 270 Mich 174 *127(97 ALR 552); Chrysler v. Blue Arrow Transport Lines, 295 Mich. 606. There is nothing- in the workmen’s compensation act to indicate a legislative intent, nor anything in the cited or related cases to suggest, however, that an injury sustained while en route to or from work on a special mission must be held to arise “out of” employment regardless of the source or cause, or that the granting of compensation may be justified on the single ground, that it was because of his employment that the employee happened to be at the place when and where the accident hapxoened, without a showing of any causal connection between the injury and the employment in the shape of unusual exposure to the hazard in question. On the contrary, the cited cases go no further than to hold that the effect of the doctrine of special mission is to take an employee injured en route to or from work on a special mission out of the position of the ordinary employee injured while going to or from his regular place of work in his employer’s established place of business and to place him, instead, in a position comparable to that of a truck driver injured while driving truck in the performance of his duties for his employer. There has never been any question that under such circumstances injuries sustained by truck drivers resulting from the hazards of the road and traffic arise out of and in the course of their employment. See Daniel v. Murray Corporation of America, supra, p 14, and Dennis v. Sinclair Lumber & Fuel Co., 242 Mich 89. As the compensation act extends its benefits to a xoerson employed in a manufacturing establishment in relation to injuries resulting from the ordinary hazards of the factory, so it likewise extends them to a person whose duties of employment must be performed on the highways in relation to the ordinary hazards of the street and traffic. Each is protected against the ordinary hazards common to his place of employment. In neither *128case does the act go beyond that. Applicable to both situations is our holding in Luteran v. Ford Motor Company, 313 Mich 487, that an injury arises out of employment when there is a causal conection between it and the conditions under which the employee’s work is to be done or, as held in Daniel, when the injury follows as a natural incident to the employment and is not the result of a risk disassociated therefrom. Example of a case in which the injury was held to be the result of a risk disassociated from employment, and fully in point here, is Steffes v. Ford Motor Co., 239 Mich 501. There an eye injury sustained by a foreman in a tool grinding room, .resulting from a fellow employee’s idle shooting of a paper clip with a rubber band (an act not connected with or necessary to the work), was held not to have arisen out of his employment. In that case the Court spoke of a bird flying into the room from the outside and striking the foreman in the eye as illustrative of a situation in which the injury could not be said to have arisen “out of” the employment. Similar is Ryan v. City of Port Huron, 234 Mich 648, in which an employee was engaged in street cleaning when a storm arose and he sought shelter in a nearby private garage, whereupon he was attacked and bitten by a dog. No point was made of the fact that the employee had left the street and gone to a private garage; on the contrary, this Court assumed that he was still “in the course of his employment” but held, nonetheless, that the injury “did not arise out of the employment.” This Court said:

“Being bitten by a dog cannot be traceable to the .nature of the employment in which Mr. Ryan was engaged. There was not the slightest causal connection between them. The risk of being bitten by a dog was no greater to him because of his employment than it was to any member of the public, who chanced *129to be in the locality. The accident did not arise out of his employment.”

So here, being struck by a falling limb cannot be traceable to the nature of the employment in which plaintiff was engaged and there was not the slightest causal connection between them. Mr. Justice Butzel cites Arnested v. McNicholas, supra, in which the employee was killed by gunfire while required by his employer to perform a special mission in a place of known danger where deer hunting was in progress during open season, the death being held to have resulted from injuries arising out of the employment. The distinction between Arnested and Steffes, Ryan, or the instant case is clear on the facts. To make the facts in the latter 3 cases comparable so as to call for application of the same rule and for the same result as in Arnested it would be necessary to conjure up a situation in each, under which, in Steffes, the foreman’s eye would have been struck by a paper clip while he was performing a special mission in an area of known danger where a paper-clip-shooting contest was in progress; or, in Ryan, the employee would have been bitten while performing a special mission in an area of known danger where the presence of vicious dogs rendered the locality hazardous; or, in the instant case, plaintiff would have been struck by a falling limb while performing a special mission in an area of known danger where, customarily, trees were being felled and branches sawed out of trees. In each such situation the noted hazard would be, as in Arnested, an ordinary hazard of the place of employment, becoming connected with and incident to-the employment. In the instant case, however, the falling branch was not an ordinary hazard of the street or traffic or of a place in which plaintiff was required to be. On the other hand, neither was the. risk or danger in connection therewith peculiarly in*130cident to plaintiff’s work or greater to him because of his employment than it was to any member of the public who chanced to be in the locality.

In point are Klawinski v. Lake Shore & Michigan Southern R. Co., 185 Mich 643 (LRA1916A, 342); Thier v. Widdifield, 210 Mich 355; and Nelson v. Country Club of Detroit, 329 Mich 479, referred to by Mr. Justice Butzel as the “lightning cases where the injury occurred through an ‘act of God.’ ” The applicability of those cases is in no wise diminished by the fact that “there was no storm or unusual weather conditions” or that the limb was “a little decayed.” Bouvier’s Law Dictionary (Rawle’s 3d Rev) defines an act of God as:

“Any accident due to natural causes directly and exclusively without human intervention.”

In Tobin v. Lake Shore & Michigan Southern R. Co., 192 Mich 549, this Court said:

“An ‘act of God’ is defined as ‘Inevitable accident without the intervention of man or the public enemy.’ 29 Cyc p 441.”

In Jacobs v. Hagenbeck-Wallace Shows, 198 Mich 73 (LRA1918A, 504, 16 NCCA 535), this Court approved an instruction that “an act of God may be defined as a natural cause.” These definitions and the holdings in the cited “lightning cases” indicate no varying rule of law to be applied to injuries resulting- from different, unexpected occurrences occasioned by the moving forces of nature, one if it- be a descending bolt of lightning and another if a falling-branch, dropped through natural causes and the forces of nature without human intervention or negligence. Whether it be by lightning, such falling-branch, a dog bite, as in Ryan, or a flying pheasant, as in Levchuk v. Krug Cement Products Co., 246 Mich 589, and as mentioned in Steffes, the injury does not *131arise out of the employment. In this connection, it is to be noted that there is not one scintilla of evidence in the record to establish, or any from which the reasonable inference may be drawn, that- the slightly decayed condition of the branch, its presence in the tree, or its falling into the street, was in anywise due to human negligence.

The language first employed by this Court in Klawinshi, and quoted with approval in Thier and Nelson, with reference to injuries caused by lightning is equally applicable to the injury here caused by a falling limb, namely:

“It is clear * * * that this injury was in no way caused by or connected with his employment through any agency of man which combined with the elements to produce the injury; that plaintiff’s de-cedent by reason of his employment was in no way exposed to injuries from lightning other than the community generally in that locality.”

as is, also, the following from Nelson:

“There is no showing that plaintiff here was, by reason of his employment, in any way exposed to injuries from lightning other than the community generally in the locality in question or that there was anything about his employment which, through any agency of man, combined with the elements to produce the injury.”

and the following from Thier:

“We conclude by saying that, in bur opinion, there is in the instant case no evidence tending to prove that the death was brought about by the extra hazardous nature of the employment. As was said by the English court, it is not enough for the applicant to say, ‘the accident could not have happened if I had not been engaged in the employment, or if I had not been in this particular place.’ The applicant must go further and say, ‘the accident arose because *132of something I was doing in the course of my employment, and because I was exposed by the nature of my employment to some particular danger.’ ”

There is no magic in the term “special mission” which can operate to make an employer more liable to an employee on a special mission than he would be to an employee at work in the employer’s established place of business for injuries resulting from lightning, biting dogs, falling limbs, or other causes disassociated from the employment, so long as the special mission in no way exposed the employee to such dangers other than the community generally in that locality.

Plaintiff seeks to distinguish the case at bar from the cited “lightning cases” on the factual basis that in Thier, Klawinsld and Nelson:

“The injured party selected his own position at the time of accident, no duty was being performed that was a regular part of the work, nothing beneficial was being done for the employer, and the employee was serving himself in protecting himself from the weather and storm.”

An examination of the opinions in those cases discloses that these distinguishing features on the facts were not treated as determinative factors in the decisions. On the contrary, the controlling tests applied were as set forth in the language above quoted from the opinions in those cases.

To sum Up, this is neither a case of injury resulting from the ordinary hazards of the place of employment, nor, on the other hand, of employment occasioning an unusual exposure to an extraordinary hazard to a degree beyond that of others in the community generally. The award should be reversed and set aside, with costs to defendants.

Reid, J., concurred with Dethmers, C. J.