Mills v. Detroit Tuberculosis Sanitarium, 19.

• Decision Date: 17 December 1948
• Docket Number: No. 19.,19.
• Citation: 35 N.W.2d 239,323 Mich. 200
• Parties: MILLS v. DETROIT TUBERCULOSIS SANITARIUM et al.
• Court: Michigan Supreme Court

323 Mich. 200

35 N.W.2d 239

MILLS

v.DETROIT TUBERCULOSIS SANITARIUM et al.

No. 19.

Supreme Court of Michigan.

Dec. 17, 1948.

Appeal from Workmen's Compensation Commission-in the Nature of Certiorari.

Proceeding under the Workmen's Compensation Act by Walter G. Mills, claimant, opposed by Detroit Tuberculosis Sanitarium, employer, and General Accident, Fire & Life Assurance Corporation, Limited, insurance carrier. From an award of the Workmen's Compensation Commission granting compensation, the employer and insurance carrier appeal in the nature of certiorari.

Award affirmed.

Before the Entire Bench.

Lacey, Scroggie, Lacey & Buchanan, of Detroit, for defendants and appellants.

Marcus, Kelman & Loria and Lewis F. Brady, all of Detroit, for plaintiff and appellee.

CARR, Justice.

Plaintiff was in the employ of defendant, the Detroit Tuberculosis Sanitarium, from January 1944, until September, 1946. In November following the termination of his employment, he filed a petition with the State Department of Labor and Industry for compensation under the provisions of the workmen's compensation law of this State, Act No. 10, Pub.Acts 1912, 1st Ex.Sess., as amended, 2 Comp.Laws 1929, § 8407 et seq., as amended, Stat.Ann. § 17.141 et seq. The petition filed set forth that the disability for which compensation was sought resulted from a personal injury, or a compensable disease, occurring on or about august 26, 1946, and that such disability was caused by pulmonary tuberculosis. Defendant filed their answer denying that plaintiff had suffered any compensable disability arising out of and in the course of his employment by the Detroit Tuberculosis Sanitarium, hereinafter referred to, for the sake of brevity, as the defendant. The deputy commissioner before whom the matter was heard awarded compensation, which award was affirmed by the compensation commission. Defendants have appealed.

Based on the proofs offered at the hearing, the commission found that, during the period of his employment, plaintiff worked in the kitchen of defendant's sanitarium, washing dishes used by patients. In accordance with a rule or regulation of the defendant for the protection of its employees, plaintiff was X-rayed at intervals of six months, or approximately so. On August 26, 1946, it was discovered that he had tuberculosis. Thereafter he became a patient in defendant's sanitarium and was totally disabled. The commission further found that the disease from which plaintiff was suffering was contracted during the course of his employment by the defendant. Such conclusion was supported by the testimony of the superintendent of defendant's sanitarium, Dr. Willard B. Howes, whose opinion on the matter is indicated by the following excerpt from his testimony:

‘Q. The only opportunity that you think of now whereby he might contract a T.B. germ would be from the kitchen dishes, you think? A. Yes.

‘Q. Now, let me ask you something about tuberculosis. Is that a disease? A. It is a disease.

‘Q. Yes? A. Yes.

‘Q. And what is the cause of the disease? A. It is caused by the bacillus of tuberculosis.

‘Q. And who is that may suffer from such cause? A. Anyone.

‘Q. By that you mean any member of the general public? A. No one is immune.

‘Q. Do you mean any one of the general public, is it a disease to which the public is generally exposed? A. Yes.

‘Q. In that respect can it be said to be an ordinary disease of life? A. Yes.

‘Q. Where is it you can pick up a T.B. germ? A. Beg pardon?

‘Q. Where is it you can pick up a T.B. germ? A. The disease can be picked up by intimate and prolonged contact with the source or tubercle bacilli.

‘Q. Where may it be picked up? A. Wherever that source is.

‘Q. Can it be picked up-I have heard people talk about money, paper money, do you believe it can be acquired by placing money in one's mouth or contact? A. I doubt it.

‘Q. Can he pick it up in a theatre where someone may sneeze or cough who is already infected with T.B.? A. I doubt it.

‘Q. Can it be picked upon in street cars under those circumstances where one affected with tuberculosis may cough or sneeze and the sputum transmitted to the respiratory organs of another? A. I doubt it.

‘Q. Do you adhere to the theory that the germs may be suspended in air? A. They may.

‘Q. To be inhaled by a person and that person may acquire tuberculosis? A. They may, not to the extent to produce tuberculosis in an individual, however. In my previous statement I stated that it is caused by tubercle bacilli and required prolonged and intimate contact with the source and you wouldn't get prolonged contact in the theatre, I don't think on the street car or walking down the street.

‘Q. Do you adhere to the theory then, that one can acquire tuberculosis in a tuberculosis sanitarium? A. No.

‘Q. Well, where else then may some person acquire it? A. If you had it, your son would. You would be in contact with it prolonged and intimately and he would probably get it. Wherever there is a source you can. You don't get if from one with tubercule bacilli from the air. You have to have prolonged contact. You have got to have a sufficient dose to overcome the I say-we don't know anything about the impunity of the individual.’

The findings of fact made by the commission with reference to plaintiff's disability and the manner in which he acquired the disease are supported by evidence, and are in consequence binding on the court. 2 Comp.Laws 1929, § 8451, as amended by Act No. 245, Pub.Acts 1943, Comp.Laws Supp.1945, § 8451, Stat.Ann. Cum.Supp. § 17.186. Hayward v. Kalamazoo Stove Co.,290 Mich. 610; 288 N.W. 483;Palchak v. Murray Corporation of America, 318 Mich. 482, 28 N.W.2d 295.

The principle question in the case is whether disability resulting from tuberculosis of the character suffered by plaintiff and acquired in the manner disclosed by the testimony is compensable under the statute in its present form. The commission determined the matter in favor of the plaintiff. Appellants claim that such holding was erroneous under pertinent provisions of the statute, insisting that disability resulting from pulmonary tuberculosis is not compensable. The precise question has not heretofore been passed on by this court. Decision from other States, based on statutory provisions differing from those in the Michigan act, are of little assistance.

The workmen's compensation law was amended by Act No. 61, Pub.Acts 1937, by adding thereto part 7, Comp.Laws Supp.1940, § 8485-1 et seq., which broadens the scope of the term ‘personal injury’ as previously used in the act, and provides for compensation for disabilities resulting from so-called occupational diseases. As amended by Act No. 245, Pub.Acts 1943, § 1 of part 7, Comp.Laws Supp.1945, § 8485-1, Stat.Ann.1947 Ann.1947 Cump.Supp. § 17.220, reads in part as follows:

‘The term ‘personal injury’ shall include a disease or disability which is due to causes and conditions which are characteristic of and peculiar to the business of the employer and which arises out of an in the course of the employment. Ordinary diseases of life to which the public is generally exposed outside of the employment shall not be compensable.'

Appellants contend that pulmonary tuberculosis is an ‘ordinary disease’ of life. In the common acceptance of the term, we think it must be so regarded. It is a matter of common knowledge that it is widespread, and that it is not limited to any particular class of individuals nor to specific localities. Illness and death resulting from it are common. The testimony of Dr. Howes, above quoted, indicates that he considers it to be an ordinary disease of life as the expression is generally used. Dr. Louis J. Bailey, sworn as a witness on behalf of defendants, expressed the same view. Obviously neither medical expert was undertaking to interpret the provision of the statute above quoted, but, rather, to voice an individual opinion based on experience and familiarity with the disease.

The Supreme Court of Illinois in Western Foundry Co. v. Industrial Commission, 384 Ill. 420, 51 N.E.2d 466, 468, had occasion to construe a provision of the workmen's occupational disease act of that State, reading as follows:

‘Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the said diseases follow as an incident of an occupational disease as defined in this section.’ ^*

In reversing an award, it was said:

‘We do not think it could reasonably be said that pulmonary tuberculosis is other than an ordinary disease, and it is a disease to which workmen would be equally exposed outside of their employment.’

From the conclusion that tuberculosis may be regarded generally as an ordinary disease, it does not necessarily follow that disability resulting therefrom is not under any circumstances compensable under the Michigan statute. It will be noted that the statute does not place all ordinary diseases in a non-compensable class, but, rather, those ‘to which the public is generally exposed outside of the employment’. The evidence in this case indicates that the plaintiff was exposed in his employment to the risk of contracting tuberculosis in a far greater degree and in a wholly different manner than is the public generally. The testimony of Dr. Howes, above quoted in part, suggests that merely casual exposure to tubercle bacilli will not result in contracting pulmonary tuberculosis. Under the proofs here, it cannot be said that the public is ‘generally exposed’ to the disease to the extent required to contract it. The record here does not disclose that plaintiff was brought in contact with any definite source of tubercle bacilli outside of his employment.

In construing the language of the statute above quoted, the basic rule of interpretation is to ascertain and give effect to the intention of the...