Levchuk v. Krug Cement Products Co. , 246 Mich. 589 ( 1929 )

I am unable to agree with the conclusion reached in this case by the Chief Justice. It is conceded that the accident to the plaintiff arose in the course of his employment, but it is insisted that it did not arise out of his employment. My Brother argues that it did not arise out of his employment because the danger to which he was exposed in this truck on the highway was no greater or different than that of other members of the general public similarly situated. He quite overlooks the fact that it was a condition of the plaintiff's employment that he should be there on the highway at that time. His employer sent him from the factory to a gravel pit. He could not go as he pleased. The vehicle in which he was to ride was selected for him. He was required to ride on this truck, and while thus riding he was performing his master's business as truly as he would have been had he been working in the factory or the gravel pit. So, whatever were the hazards to which he was then exposed, they were connected with his employment and incidental thereto. In this sense there was a causal connection between the injury and the employment. His employment compelled him to face those risks to which he was exposed while riding in a truck on the highway. They were authorized by his employer. These facts distinguish the present case from the cases cited and followed by my Brother.

"When these hazards thus become connected with and incidental to the employment, and are the direct cause of the accident, such accidents arise out of, as well as in the course of the employment. And the fact that others, engaged in their own affairs, are more or less exposed to the same street risks, does not preclude recovery by an employee who is necessarily exposed to them in performing the duties of his employment contract." Cook's Case, 243 Mass. 572 (137 N.E. 733, 29 A.L.R. 114).

I am unable to distinguish the present case fromKunze v. Detroit Shade Tree Co., 192 Mich. 435, and Widman v.Murray Corporation, 245 Mich. 332.

In the Kunze Case, the employee was engaged in trimming trees in the city of Detroit. He left one job to go to another using the street cars as directed by his employer. While at a street intersection, he was knocked down by an automobile and so seriously injured that he died the next day. In holding that it was a compensable accident, the court said:

"We also think that it is a justifiable conclusion that the accident can be fairly traced to his employment as a contributing and proximate cause. It is true that in going from one place to another, as was his duty, he naturally was compelled to assume risks not in anywise connected with the trimming, planting, and treating of shade trees. But his employment extended further than this, and necessarily obliged him, in the discharge of his duties, to go from place to place, and in so doing, to assume the risks of traffic upon the streets."

In the Widman Case, the plaintiff was injured while riding on a train in going from one place to another on his employer's business. This court said:

"It was a condition of his employment that he should be on this train, which turned out to be a place of danger. The risks to which he was exposed from riding on trains from place to place as he was directed were incidental to his employment. He was required to ride on trains in the performance of his master's business. This condition of the employment was the proximate cause of his injury. The undisputed facts fix the responsibility of the defendant regardless of the fact that others riding on the train were exposed to the same risks."

These cases are in harmony with the best thought on the subject. They lay down a just and reasonable rule. On the other hand, the rule which my Brother contends for would exclude from the benefits of the workmen's compensation law many men who are required by their employment to be out of doors where they are exposed to the same risks as other members of the public. As I read his opinion, he fell into this error by following the general rule and failing to note the exceptions that arise when the injury is traceable to the employment. He likens the present case to Klawinski v. RailwayCo., 185 Mich. 643, and Thier v. Widdifield, 210 Mich. 355. TheKlawinski Case goes no farther than to hold that death by stroke of lightning is not an accidental injury within the meaning of the compensation act unless it is combined with some human agency to produce the injury. This was on the theory that all persons in doors or out are exposed to such a risk during electric storms. The intervention of a human agency could be illustrated by the act of an employer in requiring the employee to work near an electric appliance or electric wires which would expose him to a risk peculiar to his employment. In theThier Case, the employee left his work and went into a barn during a severe electric storm. He was struck by lightning while standing by the door near to an electric wire. In holding that the injury was not accidental within the meaning of the statute, the court used this significant language:

"He selected his own position, and had not been asked or directed to stand in that place by Widdifield" (his employer).

If the employer had selected his position, had put him near to the electric wire where he faced the risk of being struck by lightning, undoubtedly the court would have held that there was an accidental injury, for, in such a case, the employer would have authorized a peril to which others were not exposed.

We think the instant case is controlled by Kunze v. DetroitShade Tree Co., supra, and Widman v. Murray Corporation, supra.

The award should be reversed, with costs to the plaintiff.

FELLOWS, POTTER, and SHARPE, JJ., concurred with McDONALD, J.