Salmon v. Bagley Laundry Co. , 344 Mich. 471 ( 1955 )

Sharpe, J.

Upon leave being granted, defendants

appeal from an award of the workmen’s compensation commission in which it was determined that plaintiff is entitled to compensation at the rate of :$18.67 a week from January 16,1951, until the further order of the commission. The essential facts are not in dispute. Plaintiff was employed by defendant company. Her job was to feed clothes into a mangle and fold them when they came out. Plaintiff and her family lived upstairs over the laundry at the time of her injury.

Prior to plaintiff’s injury, a contract was negotiated by the union representing the laundry employees providing for a rest period of 10 minutes ■each morning and afternoon, during which time employees were permitted to leave the laundry for a so-called coffee break. When the coffee-break period was arrived at a whistle would blow and the ■employees could go out for coffee or minister to his or her own personal wants. No deduction of wage was made during this period. On the day in question plaintiff began work at 8 a.m., and worked until the morning rest period commencing at 9:20 a.m. Plaintiff and other employees went to a nearby restaurant where plaintiff had coffee. On leaving the laundry, plaintiff noticed some ice on the step at the front door of the laundry. The step protruded about 2-1/2 feet into the public sidewalk. Upon return from the restaurant, and on ascending the .step outside the front door of the laundry, plaintiff slipped and injured her left wrist. In an opinion the commission held:

“It is our opinion that plaintiff sustained an accidental injury while performing an act which was-beneficial to her employer, incident to and within the ambit of her employment and conclusive of the proposition that her injury arose out of and in the course of her employment.”

Prior to the inauguration of the 10-minute rest period, the employees were permitted at their own discretion, with the consent of the employer, to go-out of the laundry to get coffee and sandwiches, as the laundry did not provide such facilities. One of the purposes, and the main purpose in selecting a particular time for the rest period, was to eliminate the confusion of employees leaving the laundry at irregular periods. We note that under the so-called coffee break, the employee was not required to go-out for coffee. The employees could do anything-they wished during that period or they could merely rest if that was their wish.

Defendants urge that under the circumstances of this case plaintiff did not suffer an accident arising out of her employment. Our Court adheres to the rule laid down in Daniel v. Murray Corporation of America, 326 Mich 1, 12, 13, where we said:

“In this State the test that has been followed is whether the employee, regardless of where his injury arose, either on or off the premises of his employer, was injured while within the ambit of his employment, and whether there was a causal connection between the injury and the employment. The primary test under our statute is not where the injury occurred, but whether his injury arose out of and in the course of his employment.”

The law is well settled that an industrial injury is compensable only when the injury is received while the employee is doing the duty he is employed to perform, and as a natural incident of the work, see Associated Oil Co. v. Industrial Accident Commission, 191 Cal 557 (217 P 744), cited with approval in Tegels v. Kaiser-Frazer Corp., 329 Mich 84. In the Tegels Case, above cited, plaintiff brought compensation proceedings against his employer to recover for injuries sustained while attending a union meeting at his employer’s factory for the purpose of electing a shop steward. The meeting was held during the lunch period and at a time when plaintiff was not being paid. We there held that the injury did not arise out of or in the course of plaintiff’s employment. We there said (p 90):

“In the case at bar plaintiff was not actively engaged in rendering a service to his employer at the time of his injury. ITe was exercising a privilege common to all members of the union in the selection of a steward. It cannot be said that his injury arose out of and in the course of his employment.”

The right to control or direct an employee is an essential element in determining whether the relationship of employer and employee exists. In Tuttle v. Emburg-Martin Lumber Co., 192 Mich 385 (Ann Cas 1918C, 664), we held that the test of the relationship is the right to control, whether in fact exercised or not. See, also, Dennis v. Sinclair Lumher & Fuel Co., 242 Mich 89, and Janofski v. Federal Land Bank, 302 Mich 124. In cases involving independent contractors the right to direct or control is absent. In the case at bar, as in the Tegels Case, supra, the right to control the actions or activities of the employees during the noon hour lunch period or coffee-break period was absent. In the instant case plaintiff had the option of leaving the laundry for coffee or remaining within the building for a rest period. During this period her employer had no control over her actions, nor can it be said that she was actively engaged in rendering a service to her employer. The fact that she was paid during this 10-minute interval has no bearing upon whether her injury arose out of and during the course of her employment. During this period plaintiff was exercising a privilege common to all employees of the defendant company. The facts in this case do not warrant a finding that her injury arose out of and during the course of her employment.

The order of the workmen’s compensation commission is reversed and the cause remanded for entry of an order denying compensation. Defendants may recover costs.

Carr, C. J., and Boyles, Reid, Dethmers, and Kelly, JJ., concurred with Sharpe, J.