Markoff v. Emeralite Surfacing Products Co. , 190 Minn. 555 ( 1934 )

I regret that I cannot carry my agreement in the first proposition of the opinion through to the second. It is there held that the process of transportation continued to the precise place of the accident and through the time thereof, notwithstanding that the employe had ceased to be a passenger in the employer's truck. My submission further is that, unless mere dictum rather than decision is enough, the cases cited do not support the conclusion. That is simply because in all of them the only question decided was whether the accident arose out of and in the course of the employment, and not whether it occurred during the course of transportation furnished the employe by the employer.

Here we are not concerned with the question whether the accident to Markoff arose generally out of and in the course of his employment. The decisive and only one under our statute, 1 Mason Minn. St. 1927, § 4326(j), is whether the employer's "transportation" of Markoff had ended. It may be put this way: At the moment of injury, was the employer still a carrier of Markoff? Still another phrasing of the query might be this: Did Markoff remain a passenger of the employer at the moment of his injury? These latter questions under familiar law should be answered, I submit, in the negative. In Ruddy v. Ingebret,164 Minn. 40, 204 N.W. 630, 44 A.L.R. 159, we were dealing with a charge of negligence made by a plaintiff who claimed that the accident happened while she remained a passenger on a street car. We assumed for purposes of decision that such claim was correct. But on the authority of cases from Pennsylvania, Ohio, Connecticut, Michigan, Indiana, and North Carolina, we said [164 Minn. 41]:

"Under ordinary conditions * * * an adult passenger on a street car ceases to be such when at the end of the trip he steps from the car onto the street."

So we could not hold that had Markoff just alighted from a motor bus he would yet have been a passenger of it at the moment of his injury. How then can we hold that he remained a passenger of the motor truck from which he had completely disembarked?

The basis of the liability of common carriers is negligence, whereas liability under the workmen's compensation law is imposed irrespective of negligence. But we are not now dealing with the basis of liability. We are dealing instead with itsreach as limited by area, occasion, and time. The question being whether the process of transportation had ended, and the factors of decision the same, it strikes me that the rule applied to common carriage should be decisive. If so, Markoff, at the moment of his injury, had ceased to be a passenger. The process of transportation, through which and only through which the statutory liability extends, was at an end.

The legislature has drawn the line between liability and non-liability. Strong is the temptation to bulge it here and there to include deserving cases which otherwise would be excluded. But it must be resisted if we are to remain in the field of adjudication as distinguished from that of legislation. A case a foot or so, or even an inch or so, to one side of the line is just as definitely there as though it were a mile or more on that side. My reading of the statutory language is such that I cannot concur in the decision awarding compensation.