name of Leonard J. McCabe to operate the engine in said plant on the night of February 6, 1913, that being the first night that said company operated said plant. This engineer was employed on Wednesday, February 5th. He went to the plant of the Winn & Hammond Company on Wednes day, February 5th, to look over the plant preparatory to taking charge of it on the night of February 6th. On this occasion he told James Spooner, then in charge of the plant, that he was going to take charge of the same on Thursday night, February 6th. On Thursday, February 6th, at about 5 o'clock, McCabe went to the plant for the purpose of taking charge that night. He saw Spooner, and the latter objected and desired himself to operate the engine. McCabe testified that Spooner told him that they were going to run about 9 o'clock, and that he (Spooner) would run himself that night, and it was not necessary for McCabe to stay. McCabe then went away and Spooner did actually operate the engine in said plant on the night of February 6, 1913. James Spooner, husband of claimant, was a stationary engineer in the employ of the Winn & Hammond Company, and had been in its employ as such stationary engineer for a period of twenty years or more, prior to said February 6th. His duties were to run the engine and dynamo in the plant. | It was not a part of his duties to run the elevator, but he sometimes did so for his own convenience, as did other employees, in the absence of the regular elevator man, or when requested by the employer in furthering its work. On the night in question, or about 2 o'clock in the morning of February 7th, said James Spooner left his place of duty in the engine room in the basement of said plant and went to the upper floors of said building. In going to said upper floors he walked up the stairway. Upon the second floor he met Otto Loeffelbein, John C. Hussey, and a Mr. Wheeler, employees of the Detroit Saturday Night Company, and stopped with them and had a casual conversation. Shortly after James Spooner came upon said second floor said Hussey and the others started to go up the stairway from the second to the third floor of said build ing for the purpose of getting some stools to sit upon at their work; and thereupon said James Spooner offered to take them up on the elevator, saying: "What's the use of your walking; ride up." And said Spooner did then and there open the door of the elevator which stood there, and the said employees got upon the same, and Spooner operated it in such a manner as to cause it to ascend. The elevator passed one floor in safety, and just as it was passing the next floor James Spooner received the injuries

which caused his death. There was no light whatever upon the elevator, and the men upon it were unable to tell the cause of the accident from which Spooner suffered the injuries which caused his death. The claimant made demand upon the appellant for payment to her of compensation because of the death of said James Spooner, under the terms of said act. The appellant denied all liability to said Mary Spooner under said act. An arbitration was had under the act, and the committee of arbitration awarded said Mary Spooner the sum of $2,520. The appellant filed a claim of review of the decision of said committee with the Industrial Accident Board, and said decision of said committee was duly reviewed by said Industrial Accident Board, and on June 10, 1913, said Board made a decision affirming the decision of said arbitration committee. The case is here for review upon certiorari.

The appellant insists that it did not make any contract, express or implied, of employment with said James Spooner, and that in his operation of said engine on the night of February 6, 1913, he was acting as the employee of Winn & Hammond Company, and not as the employee of the Detroit Saturday Night. The Industrial Accident Board, in its fourth finding of fact, found as follows: "Mr. Spooner was engaged in operating the engine in the plant for Winn & Hammond Company, until 5 o'clock in the afternoon of February 6th, and from that hour until he met his death, at about 2 o'clock in the morning of February 7th, he was in the employ of the Detroit Saturday Night Company, being engaged that night in operating the plant as engineer in getting out its paper, and that Spooner at the time of the accident was in fact an employee of the Detroit Saturday Night."

It is the claim of appellant that there was no evidence whatever to support this finding of fact. The said Industrial Accident Board found, as matter of law, that the injury received by said James Spooner, and which caused his death, arose out of and in the course of his employment by the Detroit Saturday Night Company, and that said employment was not a casual employment within the meaning of said act, so as to debar Mary Spooner from recovering compensation for the death of James Spooner.

By appropriate assignments of error the following propositions are presented by the appellant:

(1) That Spooner was not an employee of the Detroit Saturday Night Company as matter of law.

(2) That the injuries did not arise out of and in the course of his employment.

1. On the first proposition urged by appellant, a careful reading of the evidence contained in this record leads us to the conclusion that we cannot say that there was no evidence to support the finding that Spooner was an employee of the Detroit Saturday Night Company. Under the statute, as construed by this court, if there was evidence to support the finding, we will not review or weigh that evidence. Rayner v. Sligh Furniture Co. 180 Mich. 168, post, 22, 146 N. W. 665, 4 N. C. C. A. 851. We think there was some evidence in support of this finding.

2. Did the injuries arise out of and in the course of his employment? The appellant needed and had employed an engineer to operate the engine and dynamo upon the night in question. It was not concerned with and did not need the use of the elevator. As matter of fact, the agreement had provided that the Winn & Hammond Company was to furnish the elevator service, but no such service was needed by appellant that night. If we are right in say ing, under the first proposition, that there was evidence that Spooner was in the employ of the appellant, that employment was solely to operate the engine and dynamo. The evidence is silent as to any other duty imposed upon him by the appellant. The engine room was located in the basement of the building; and, so far as this record shows, Spooner had no occasion to leave it, and had no duty to perform upon the upper floors of the building during the night of the injury. Under the evidence he had gone upon these upper floors purely and solely to visit with the men working there. The evidence is undisputed that he walked up the stairway. He owed no duty to those men, or to anybody, to take them to the upper floors upon the elevator; neither was he requested to do so. It was doubtless a friendly act upon his part, which did not tend to further the business of appellant At the time of the injury we think that he was engaged in an act outside of, and not in the course of, his employment, and the injuries he received and which caused his death did not arise out of and in the course of his employment. The elevator shaft was in pitch darkness, by the undisputed evidence, and in using it he not only risked his own life, but that of the men he took upon the elevator with him. Had he remained in the place where his duties called him and attended to those duties, he would not have been injured, so far as this record shows. The material question is not what he had done at times, for his own

ploy of Winn & Hammond Company, but the pertinent question is: What was he employed to do upon this night? Manifestly, to run and care for the engine and dynamo. This injury occurred while he was away from his work, and while he was a voluntary visitor to the employees of the appellant, and the act was for his own pleasure or satisfaction.

Counsel for appellee in support of their claim have called our attention to the case of Miner v. Franklin County Teleph. Co. 83 Vt. 311, 26 L.R.A. (N.S.) 1195, 75 Atl. 653. In that case the plaintiff was an employee of the defendant telephone company. On the day of the accident defendant's foreman said to the linemen, of which the plaintiff was one, that they would go down and splice the cable at a certain point, and all went together to the place. On arriving there the foreman told the plaintiff and another lineman to go to a certain place and get a ladder. They were unable to get it, and the plaintiff so reported to the foreman on their return. The foreman was then on the cable seat, with his materials at hand, and was just commencing the work of splicing. After watching him awhile, the plaintiff said he guessed he would go up and help him, and received no reply. The plaintiff then ascended the pole and stood on an upper cross-arm and handed the sleeves to the foreman as he needed them, the foreman taking them from him and using them as he proceeded with the splicing. After working in this manner for about twenty minutes, the foreman placed the bag containing the sleeves on the other side of him, which put them beyond the plaintiff's reach; and, after looking on awhile, the plaintiff said he would go down, and proceeded to do so, receiving therein the injury complained of. These were the circumstances tending to show that the plaintiff was in the performance of his duty when he received the injury. In deciding the case for the plaintiff the court said: "The voluntary offer of a willing servant to make himself useful in a matter not covered by any express command, when the proffered service is accepted by his superior, although not by an approval expressed in words, cannot be said, as matter of law, to put the servant outside the limits of his employment."

We think the case readily distinguishable from the instant case. In fact it might be said the plaintiff there was in the performance of and carrying on the very work for which he was employed, to wit: He was assisting his foreman, who undoubtedly represented the master. In this instant case Spooner was rendering no service which was either accepted by or known to his su

perior, but was engaged in a voluntary, friendly act entirely outside the scope of his employment upon the night in question.

one

Our attention is also called by appellee to the case of M'Quibban v. Menzies, 37 Scot. L. R. page 526, (1900) 2 F. 732, 7 Scot. L. T. 432. In that case a workman was engaged as a laborer in a steam joinery, his duty being to carry wood from the machine men to the joiners and to clean and sweep up the floor of the machine room. A belt in connection with one of the machines became loose, and he went, without being asked so to do, to assist the machine man in replacing the belt upon the shaft. At the request of the machine man the workman ascended a ladder to try and replace the belt, and, his arm being caught in the belt, he was drawn up into the shaft and received fatal injuries. It was admitted that had a foreman been present he might have ordered the workman to do this act, but no other person had authority to order him to do so. Held, that the accident was arising out of and in the course of his employment in the sense of the workmen's compensation act. The court said: "The question of law which we have to decide is whether the deceased workman was injured by an accident arising out of and in the course of his employment, and although | that would appear primarily to be a question of fact, there is no doubt that in cases of this kind questions of fact and law some times run into one another. The words 'arising out of and in the course of the employment' appear to me to be sufficient to include something which occurs while the workman is in his master's employment and on his master's work, although he is doing something in the interest of his master beyond the scope of what he was employed to do. The act does not say, 'when doing the work which he was employed to perform' but it is a fair inference that if it had been intended to limit the right to compensation to such accidents, different language would have been used from that which occurs in the act. It must be assumed, therefore, that the legislature used language of wider scope to include cases where a workman intervenes to do something useful and helpful to his master, although outside the special duties which he is employed to per

form."

After citing cases, the court concluded: "The action of the workman in this case appears to me to have been a natural and helpful intervention in the conduct of his mas

ter's business, and accordingly I am of the opinion that the question should be answered in the affirmative."

Here also it clearly appeared that the servant was doing something in the interest

of his master, or in the language of the opinion, "something useful and helpful to his master." Such was not the fact in the instant case, as we have already stated.

Our attention is also called to language used by Ruegg in his work on Employers' Liability and Workmen's Compensation, at page 346, where that author says: "The words 'arising out of the employment' may be satisfied if it is shown that the occupation in which the workman was engaged, though not strictly part of his duties, was being done in the mutual interest of the employer himself" (citing cases).

Here the same distinction is made which we have pointed out above. The case of M’Quibban v. Menzies, supra, has been referred to as an "Emergency Case." Such cases seem to be an exception to the general rule where a workman, for the protection of his master's interest, acts in an emergency. Manifestly, there was no emergency in the instant case.

We are of opinion that the cases cited by appellant are applicable to the instant case, although the contrary is claimed by appellee. Smith v. Lancashire & Y. R. Co. [1899] 1 Q. B. 141, 68 L. J. Q. B. N. S. 51, 47 Week. Rep. 146, 79 L. T. N. S. 633, 15 Times L. R. 64. In that case a ticket taker in the employ of the railway, after he had collected his tickets from a train, got upon the footboard of the train after it had started, to speak to a woman passenger, and was injured. It was held that the accident was not one arising out of and in the course of his employment. This case was disposed of upon the principle that where the workman is doing an act entirely for his own purposes, and in no way, either directly or indirectly, in the interest of his employer, then, however harmless such act may be, he loses the protection of the act whilst he is so engaged. In Reed v. Great Western R. Co. [1909] A. C. 31, the court said: "It is not that he violated a rule, but that the accident did not arise out of or take place in the course of the employment at all. It took place while for the moment he quitted his employment."

In Moore v. Manchester Liners [1909] 1 K. B. 417, 78 L. J. K. B. N. S. 463, 100 L. T. N. S. 164, 25 Times L. R. 202, a fireman left the ship and went ashore to procure articles which were necessary for his own fell from a ladder fastened to the ship's side convenience and comfort. On returning he and resting on the quay below. This was the only means of access to the ship. In giving judgment reversing the county court judge, who had awarded compensation, Cozens-Hardy, M. R., said: "It seems to me he [the seaman] was outside the protection

given by the act from the moment he left the ship until he got back onto the ship." See also Lowe v. Pearson [1899] 1 Q. B. 261, 68 L. J. Q. B. N. S. 122, 47 Week. Rep. 193, 79 L. T. N. S. 654, 15 Times L. R. 124; Reed v. Great Western R. Co. [1909] A. C. 31, 2 B. W. C. C. 109, 99 L. T. N. S. 781, 78 L. J. K. B. N. S. 31, 25 Times L. R. 36, 46 Scot. L. R. 700, 53 Sol. Jo. 31.

Of this case Mr. Ruegg says [p. 353]. "It is a decision of the House of Lords, and may be said to establish finally the principle propounded in the first decision given on the words, viz.: Smith v. Lancashire & Y. R. Co. supra. This principle is that where the workman is doing an act entirely for his own purposes, and in no way,

either directly or indirectly, in the interest of his employer, then, however harmless such an act may be, he loses the protection of the act whilst he is so engaged."

Many other cases might be cited to the same effect.

We are of opinion that there was no evidence to support the conclusion that the injury arose out of and in the course of Spooner's employment, and for that reason appellant is under no liability to the claimant in this case. This conclusion renders it unnecessary for us to consider the third proposition. The decision of the Industrial Accident Board is therefore reversed.

This case was originally assigned to the late Chief Justice McAlvay.

MICHIGAN SUPREME COURT

LIDA RAYNER

V.

Certiorari.

(180 Mich. 168, 146 N. W. 665.) Master and servant - workmen's compensation act — collision with fellow employee.

An injury to an employee by collision with another employee, hidden from view by obstructions, in running to register on a time clock, which he was required to do before leaving the building when the quitting signal was given, arises out of and in the course of his employment within the meaning of the workmen's compensation act. For other cases, see Master and Servant, II. a, 1, in Dig. 1-52 N. S.

The facts are stated in the opinion.

Mr. William A. Mulhern, with Mr. Francis D. Campau, for plaintiff in certiorari:

The accident to Adelbert Rayner did not

arise out of or in the course of his employment.

Smith v. Lancashire & Y. R. Co. [1899] 1

Q. B. 141, 1 W. C. C. 1, 68 L. J. Q. B. N. S. 51, 47 Week. Rep. 146, 79 L. T. N. S. 633, 15 Times L. R. 64; Shaw v. Wigan Coal & I. Co. 3 B. W. C. C. 81; Murphy v. Ber

Note. .- For annotation on the workmen's compensation acts, see post, 23.

The injury arose out of and in the course of Rayner's employment.

V.

Fitzgerald v. Clarke [1908] 2 K. B. 796, 99 L. T. N. S. 101, 1 B. W. C. C. 197, 77 L. J. K. B. N. S. 1018; Whitehead Reader [1901] 2 K. B. 48, 70 L. J. K. B. N. S. 546, 65 J. P. 403, 49 Week. Rep. 562, 84 L. T. N. S. 514, 17 Times L. R. 387; Smith v. Lancashire & Y. R. Co. [1899] 1 Q. B. 141, 1 W. C. C. 1, 68 L. J. Q. B. N. S. 51, 47 Week. Rep. 146, 79 L. T. N. S. 633, 15 Times L. R. 64; Shaw v. Wigan Coal & I. Co. 3 B. W. C. C. 81; Murphy v. Berwick, 2 B. W. C. C. 103, 43 Ir. Law Times, 126; Morrison v. Clyde Nav. Co. [1909] S. C. 59, 2 B. W. C. C. 99, 46 Scot. L. R. 38.

Kuhn, J., delivered the opinion of the court:

This case is brought here by certiorari to the Industrial Accident Board. Adelbert

Rayner, the applicant's husband, was injured while in respondent's factory in the city of Grand Rapids. About 100 carvers and cabinet workers were employed on the third floor of the factory, and, on the blowing of the noon whistle, each workman was required to proceed to the end of the room and punch the time clock before leaving for dinner. Mr. Rayner, who was working on this floor, about 150 feet from the time clock, on November 5, 1912, when the from his bench to the clock to punch it. whistle blew at noon, started on a run

After proceeding about 30 feet, he collided with Martin De Vos, a fellow employee, whom he could not see because of drawers which were piled up on the floor. This resulted in Rayner fracturing or injuring one

or more of his ribs. The injury to his side and ribs affected the pleura of his lungs, and from the inflammation or irritation which followed the lungs became affected, resulting in Mr. Rayner's death. There had been no general notice printed or posted of a rule against running to the time clock, but, about a year previous to the accident, Rayner had been told by his foreman, Hicks, not to run to the clock. There was testimony that the rule against running had not been enforced, and no employee had been discharged because of doing so. An award to claimant, who was left as his dependent, was made by a committee on arbitration, and upon review was affirmed by the Industrial Accident Board.

It is the contention of the respondent and appellant that the facts indicate that the accident and the resulting injury arose out of an act independent of the employment, in direct violation of a rule of the company, and solely for his own pleasure or convenience. With reference to the rule, the Commission made a finding that such a rule had not been enforced, and its general violation had been acquiesced in by the employer. There being evidence to support this finding of fact, by the terms of the act (part 3, § 12, Act No. 10, P. A., Extra Session 1912) 2 How. Stat. 2d ed. §§ 3939 et seq., it becomes conclusive, and as a result eliminates the consideration of the question as to whether the injury arose by reason of the intentional and wilful misconduct of Rayner. Rumboll v. Nunnery Colliery Co. 80 L. T. N. S. 42, 1 W. C. C. 28, 63 J. P. 132.

At the time of the accident, Rayner was in the performance of a duty imposed upon him by his employer. When the noon whistle blew, it was obligatory upon him, before leaving the place of his employment, to punch the time clock. The performance

of this duty, if not the proximate cause, was a concurring cause of his injury. In Fitzgerald v. Clarke (1908) 99 L. T. N. S. 101, 1 B. W. C. C. 197, Buckley, L. J., stated the rule as follows: "The words 'out of and in the course of the employment' are used conjunctively, not disjunctively, and, upon ordinary principles of construction, are not to be read as meaning 'out of,' that is to say, 'in the course of.' The former words must mean something different from the latter words. The workman must satisfy both the one and the other. The words 'out of' point, I think, to the origin or cause of the accident; the words 'in the course of' to the time, place, and circumstances under which the accident takes place. former words are descriptive of the character or quality of the accident. The latter words relate to the circumstances under which an accident of that character or quality takes place. The character or quality of the accident as conveyed by the words 'out of' involves, I think, the idea that the accident is in some sense due to the employment." We are well satisfied that the accident was an industrial accident within the meaning of the compensation act, and arose "out of and in the course of his employment." Whitehead v. Reader [1901] 2 K. B. 48, 70 L. J. K. B. N. S. 546, 65 J. P. 403, 49 Week. Rep. 562, 84 L. T. N. S. 514, 17 Times L. R. 387.

The