Byrne v. Clark Equip. Co.

• Decision Date: 10 June 1942
• Docket Number: No. 26.,26.
• Citation: 4 N.W.2d 509,302 Mich. 167
• Parties: BYRNE v. CLARK EQUIPMENT CO. et al.
• Court: Michigan Supreme Court

302 Mich. 167

4 N.W.2d 509

BYRNE

v.CLARK EQUIPMENT CO. et al.

No. 26.

Supreme Court of Michigan.

June 10, 1942.

Proceeding under the Occupational Disease Law by Josephine Byrne, widow of Joseph L. Byrne, deceased, against the Clark Equipment Company and the Liberty Mutual Insurance Company. A deputy commissioner of the Department of Labor and Industry awarded the plaintiff compensation. On review of the award by the Department of Labor and Industry the award was affirmed, and the defendants appeal.

Award vacated.

Appeal from Department of Labor and Industry.

Before the Entire Bench

Alexander, McCaslin & Cholette, of Grand Rapids, for appellants.

Donahue & Grathwohl, of Niles, for appellee.

STARR, Justice.

Defendants appeal from an award of the department of labor and industry granting plaintiff compensation of $18 per week for 300 weeks, beginning March 1, 1941, together with medical, hospital, and funeral expenses.

Plaintiff's decedent husband was employed by defendant Clark Equipment Company. His regular work was the lifting of steel axle housings, weighing from approximately 60 to 180 pounds, off a cooling rack and carrying them six or seven feet to a rolling machine. During an eight-hour day's work he handled from 240 to 300 axle housings.

On February 7, 1941, plaintiff's decedent told the personnel manager of the Clark Equipment Company that ‘he thought he had a rupture.’ He was instructed to go to the first aid department and make out the ‘usual form.’ On the same date plaintiff's decedent went to Dr. Henderson, a physician and surgeon who, the record indicates, was not employed by defendant Clark company. Dr. Henderson examined him and found that he had a ventral hernia, located about two inches above the navel, and advised an operation. On February 20, 1941, Dr. Henderson operated on him for repair of the hernia and during the operation removed his appendix. Following such operation infection developed, and on February 28, 1941, plaintiff's decedent died of peritonitis.

On March 21, 1941, plaintiff filed application under the so-called occupational disease law, Act No. 10, part 7, Pub. Acts 1912, 1st Ex. Sess., as added by Act No. 61, Pub. Acts 1937, Comp. Laws Supp.1940, § 8485-1 et seq., Stat.Ann.1941 Cum.Supp. § 17.220 et seq., for compensation for the death of her husband. Defendant answered denying liability. The matter was heard before a deputy commissioner of the department of labor and industry who awarded compensation of $18 per week for the statutory period of 300 weeks, together with medical, hospital, and funeral expenses. On review the award of the deputy commissioner was affirmed by the department, its opinion stating, in part:

‘Counsel for the defendants argue with great force the fact that plaintiff's decedent's doctor, while in the course of performing the operation, carried out an understanding that plaintiff's decedent's doctor had with plaintiff's decedent that he would also, at the time he performed the operation to repair the hernia, remove plaintiff's decedent's appendix if it didn't cause too much difficulty. Defendants argue in this connection that it developed that plaintiff's decedent had a white cell blood count of 18,600 and that in the course of the operation for the hernia a chronic appendix was removed and that therefore plaintiff's decedent, if he received an infection, that it was more likely to have come from the chronic appendix, from which infection peritonitis developed, and that the cause of death did not result from the operation to repair the hernia. We must bear in mind, however, in view of defendants' contention, that there is no positive testimony as to the definite source of the infection that resulted in peritonitis and the same will be borne out upon observing the testimony of both of the doctors who testified for the defendants and plaintiff respectively. * * * ‘Our supreme court has said, where the doctors opine the department cannot find and in the case at bar we do not feel that it is necessary to solve the medical enigma that the medical testimony finds itself enmeshed in, with particular reference to the source of the infection that resulted in peritonitis and death of plaintiff's decedent.

‘The record clearly indicates that plaintiff's decedent suffered a hernia as the result of strain arising out of and in the course of his employment; in order to repair same an operation became necessary, infection followed, the source of which is unknown peritonitis developed resulting in death.’

Defendants were granted leave to appeal. In their brief defendants admit, in effect, that the ventral hernia sustained by plaintiff's decedent arose out of and in the course of his employment and was promptly reported. However, they contend, in substance, that under the department's finding that it could not determine the source of the infection resulting in plaintiff's decedent's death, plaintiff has failed to sustain the burden of proof that the hernia and operation therefor was the proximate cause of death.

Plaintiff contends, as stated in her brief, that the operation was performed primarily for the repair of the hernia, which arose out of and in the course of the decedent's employment; that the removal of the appendix was an incident of such operation; that the decedent died as a result of infection following such operation; that, although it is unknown whether the infection resulted from the repair of the hernia or the removal of the appendix, there is a reasonable inference that such infection and death resulted from the repair of the hernia.

Dr. Henderson, who performed the operation, testified, in part:

‘Q. And what was the result of that operation? A. Mr. Byrne developed an ileus of the bowel, stoppage of the bowel, and died of peritonitis. * * *

‘Q. Would you say that peritonitis was a result of his operation for hernia? A. Yes. * * *

‘Q. Now at the time you operated on Mr. Byrne for hernia, you also removed his appendix, didn't you? A. Yes.

‘Q. Why did you remove his appendix? A. He had some tenderness over the region of the appendix and I promised to remove it for him at the time of the operation if we didn't run into too much difficulty. * * *

‘Q. I know, but what caused it, was the appendix inflamed or infected, or what caused the tenderness? A. He had a chronic inflamed condition of the appendix.

‘Q. Is that infection of the appendix? A. Yes. * * *

‘Q. And after you had closed the suture-by the way, did you operate and repair the hernia and take out the appendix in the same incision? A. Yes.

‘Q. Where did you make the incision with reference to the hernia? A. Directly over the hernia, mid-line above the navel two inches, starting an inch and a half above the navel, incision about two and one-half inches long.

‘Q. Extending upward? A. Yes.

‘Q. How far was that incision from the appendix? A. I would say seven inches.

‘Q. About seven inches, so in order to remove that appendix it was necessary, instead of pulling the appendix straight out that had to be pulled out sideways? A. We had to lift the whole bowel up through the hole, regardless of where the hole was.

‘Q. Were you able successfully to repair the hernia? A. Yes.

‘Q. Then peritonitis developed a few days after the incision had been closed? A. No, he developed an ileus.

‘Q. Is that bowel stoppage? A. Yes, the bowel didn't function.

‘Q. What caused that? A. Peritonitis. * * *

‘Q. By the way, you did an operation later in seeking to correct the peritonitis? A. To relieve the gas in his intestines. * * *

‘Q. When you did the second operation could you tell where that peritonitis started from? A. No, the whole bowel seemed to be practically the same from what we could observe from the small opening we made.

‘Q. Is it more likely that the peritonitis developed from the appendix than that it developed from the hernia? A. Well, we made our incision over the stump of the appendix to determine that condition and there were no adhesions or infection in the region of the appendix. * * *

‘Q. I will repeat my question-isn't it as likely that the infection or peritonitis resulted from the appendix as it would have resulted from the hernia? A. Either way.

‘Q. And it is impossible to tell which caused the peritonitis? A. yes.

‘Q. So it is impossible for you to say whether this peritonitis which was the direct cause of death resulted from the removal of the appendix or the operation of the hernia? A. I don't know which side started it. * * *

‘Q. What was the blood count on this patient, white blood count, do you have your records of it? A. At what time?

‘Q. Before the operation? A. 18,600.

‘Q. What is normal blood count? A. Usually expect to find it 7,500. * * *

‘Q. Would there be any increase in the white blood count by this hernia if the appendix had been normal? A. I have never encountered it.’

Dr. Mitchell, called as a witness by defendant Clark company, testified, in part:

‘Q. Doctor, what is there about an operation for ventral hernia such as described by Dr. Henderson that might cause peritonitis? A. The only thing that could cause peritonitis would be an outside infection at the time of the operation. Infectious material of some kind entering into the field of the operation during the operation.

‘Q. What is there about the operation for appendicitis as described by Dr. Henderson that might cause peritonitis? A. If you get-if you have an appendix with a blood count of 18,000 you have a lot of infection in the appendix. It is very easy sometimes for that infection to extend into the tissues even under the base of substances, to extend into the internal cavity and produce peritonitis, or in removing an infectious appendix from that distance, there is danger of tearing, or this infection getting out into the abdominal cavity.

‘Q. I want to ask you about the incision. You heard Dr. Henderson testify as...