
    RAYNER v. SLIGH FURNITURE CO.
    1. Appeal and Error — Certiorari—Industrial Accident Board —Contributory Negligence — Personal Injuries — Master and Servant.
    In reviewing a decision of the industrial accident board, awarding compensation for the accidental injury and resulting death of an employee, a finding that the injury did not arise from the intentional and wilful misconduct of the deceased will not be reviewed, if there was evidence to support it. Act No. 10, Extra Session 1912, §12, pt. 3 (2 How. Stat. [2d Ed.] § 3980).
    2. Master and Servant — Industrial Accident Board — Course oe Employment.
    Injuries resulting in the death of an employee, in the factory of defendant, from colliding with another servant while the decedent was running to punch the time clock, a duty imposed by the master, was an industrial accident, within the meaning of Act No. 10, Extra Session 1912 (2 How. Stat. [2d Ed.] § 3939 et seq.). McAlvay, C. J., dissenting.
    3. Same — Proximate Cause.
    If not the proximate cause of decedent’s injuries, the performance of such duty so contributed to the accident as to constitute a concurring cause.
    Certiorari to the industrial accident board by the Sligh Furniture Company to review an order awarding compensation to Lida Rayner for the accidental death of her husband, Adelbert Rayner.
    Submitted January 8, 1914.
    (Docket No. 26.)
    Affirmed April 7, 1914.
    
      Francis D. Campan (William A. Mulhern, of counsel), for appellant.
    
      Norris, McPherson & Harrington, for appellee. •
   Kuhn, J.

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 whistle blew at noon, started on a run from his bench to the clock to punch it. 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, Public Acts, Extra Session 1912) 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 willful misconduct of Rayner. Rumboll v. Colliery Co., 80 L. T. 42, 1 W. C. C. 28.

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 & Son (1908), 99 L. T. 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. The 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, 2 K. B. 48 (1901).

The judgment and decision of the industrial accident board is affirmed, with costs against appellant.

Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred with Kuhn, J.

McAlvay, C. J. I do not think that this was an industrial accident within the statute. 
      
       2 How. Stat. [2d Ed.] § 3939 et seq.
      
     