Nightlinger v. Giant Super Market

• Decision Date: 02 June 1952
• Docket Number: No. 92,92
• Parties: NIGHTLINGER v. GIANT SUPER MARKET, Inc. et al.
• Court: Michigan Supreme Court

Page 602

53 N.W.2d 602

334 Mich. 90

NIGHTLINGER v. GIANT SUPER MARKET, Inc. et al.

No. 92.

Supreme Court of Michigan.

June 2, 1952.

Currie & Currie, Gilbert A. Currie, Jr., Midland (Weston L. Sheldon, Midland, of counsel), for plaintiff and appellee.

Harry F. Briggs, Lansing (Stanley Dodge, Lansing, of counsel), for defendants and appellants.

Stanley Dodge, Lansing, of counsel.

Before the Entire Bench.

SHARPE, Justice.

This is an appeal by the employer and the insurer from an award of compensation to plaintiff, John Nightlinger.

The essential facts are as follows: Plaintiff worked as a grocery packer for defendant, Giant Super Market, Icn., from June 1949 until June 17, 1950. He only worked on Thursdays and Fridays from 4:30 p. m. to 9:00 p. m., and all day on Saturday. He was eighteen years of age, and a student in school.

In his job as a grocery packer he stood at a stand, the top of which was twenty-two inches above the floor, and part of the time he stood with his feet turned out and the inside of his knees pressing against the top of the stand. At times his knees bumped the top of the stand. Plaintiff noticed some redness on the knee when he first worked for defendant. Plaintiff did not have any medical attention for the knee until June 26, 1950, when he consulted Dr. Donald Durman. He informed Dr. Durman at that time that the pain and swelling in the vicinity of the right knee had been present for about a month. On June 26, 1950, Dr. Durman found 'a swollen area on the right leg, on the inner aspect of the leg, just below the knee, which was red, very tender to pressure, hard, firm'. The swollen area extended from the upper end of the tibia down a distance of two or three inches on the inner side of the leg. Dr. Durman made a diagnosis of osteogenic sarcoma of the tibial. The leg was amputated at the lower third of the thigh on July 24, 1950. After the operation it was diagnosed as a 'Periesteal osteofibrochondrosarcoma', which appears in young people more often than in older people.

On November 28, 1950, plaintiff filed an application for Hearing and Adjustment of Claim with the Workmen's Compensation Commission. The Deputy Commissioner granted plaintiff an award of $18.66 per week for total disability for the specific loss of a leg for a 200-week period, together with an amount for medical expenses. Upon appeal the Commission affirmed the award, based upon the following taken from an opinion filed in the cause:

'We recognize that the causes for the various types of cancer are not definitely known. We also recognize that medical men differ in their opinion as Dr. Durman indicated, as to whether trauma can be a factor in development of cancer. However, we do not feel inclined to categorically conclude that trauma is not a factor in the development of cancer simply because the causes of cancer are not definitely established or because medical men are in disagreement on the relation of trauma to cancer. We think each case must be decided on its facts. In the instant case plaintiff had never had any trouble with his right leg prior to his employment by defendant company. In the course of his employment he repeatedly bumped his right leg on the counter and a redness appeared at the site of the repeated bumping. The red area was caused by the repeated bumping of the leg against the counter. He felt a pain in his right leg after working for three of four months. Later a swelling appeared on the leg in the area where it was bumped against the counter. Finally the malignant tumor developed at that spot. To exclude the repeated bumping as a causative factor for the tumor, we would have to disregard those undisputed facts and conclude that the repeated trauma and the formation of the tumor in the very area which was subjected to the trauma were purely coincidental. We do not believe such a conclusion is justified because the symptoms first appeared following trauma to the leg and progressed with the repeated trauma. In our opinion it is more reasonable to conclude that the repeated trauma was a factor in the development of the sarcoma and we so find.'

Defendants appeal and urge that plaintiff failed to show competent evidence that he received a personal injury arising out of and in the course of his employment.

Plaintiff testified:

'Q. John, you worked for the Giant Super Market and when did you first begin your employment with them? Just approximately? A. Approximately June, 1949.

'Q. What were your duties? What did you do in working for the Giant Super Market? A. I was a packer.

'Q. Would you please explain just what you mean by a packer? A. A packer you got to--you have a checker unload the groceries from the overstand and the packers stack them up and put them in boxes.

'Q. And would you just explain just what that picture is of your stand, where they come up, where the cash register is. A. They have a high place there where they set the canned goods and food, and groceries, on the stand and down below they have a place where they set groceries on the side, a little lower.

'Q. The Commissioner: What did you say about the inside of your leg? A. I said the inside of your leg hits the counter.

'Q. Describe to us, as you are operating what we will call the checkout counter, would you just describe what your process is in packing these groceries? A. Well, in order to get up close to it and reach, your left leg was down on the floor and sort of bringing your right leg up where it cuts on the corner-shaped counter, sort of a sharp corner there.

'Q. Are you talking about the top of the stand? A. The top of the lower part of the stand.

'Q. Can you tell us how high this part where you are working is? A. Approximately about 22 inches.

'Q. John, what is your height? A. My height is about 5 feet, 9 1/2.

'Q. And when did you first notice any sign or trace of your injury complained of? A. When I complained.

'Q. When did you first notice any sign of it? A. Well, it was sort of reddish skin for quite a while back.

'Q. What do you mean by that? A. When I first started working there it was reddish.

'Q. Then what was the next indication you had of injury? A. Well, it started swelling.

'Q. And when would you say that was? A. Well, approximately two months before the operation.'

Dr. Donald C. Durman, a witness produced by plaintiff, testified:

'Q. When did you first see him? A. June 26th, 1950.

'Q. And did you examine him at that time? A. Yes.

'Q. Will you tell us what you found? A. I found a swollen area on the right leg, on the inner aspect of the reg, just below the knee, which was red, slightly red, very tender to pressure hard, firm.

'Q. Which knee was that? A. The right knee.

'Q. Now, what did you do after you located this? A. Made an X-ray examination of the leg.

'Q. And will you tell us what you found in these X-rays? A. On the anterior posterior view the femur and tibia and fibula are normal. The knee joint itself, the knee joint space is normal. On the tibia, on the medial condyle there is a area of decreased density of the bone, and just below it there is an area of rather marked increase in density of the bone and at that point on the surface of the bone, due to the level of the epithelial plate or line, there is an area of destruction of the cortex of the bone. The lateral view shows normal appearance of the femur, patella and fibula, but also shows this area of diminished density of the upper portion of the tibia and shows below it an irregular area of marked increased density of bone.

'Q. What does this area and existence of bone indicate to you? A. Indicates increased density of calcium in the bone from some cause or other.

'Q. What was your diagnosis? A. Osteogenic sarcoma of the tibia.

'Q. Will you tell us laymen just what that means so we can understand it? A. It is a malignant tumor of the bone.

'Q. Where did you find that malignant tumor on the bone, was it on the outer surface or inner or both? A. Both and inside the bone. It had gone through the cortex and the tumor tissues outside of the bone in the soft tissues had radiated from the outside in. You couldn't tell at the time where it had originated.

'Q. Where did you amputate the leg? A. Lower 1/3 of the thigh.

'Q. Is there some reason why you went that high? A. The first is that this tumor was very close to the joint, so that in order to be sure of getting above it we would have to get above the knee.

'Q. Now, Doctor, based upon the history given you, and the condition that you found there, the malignant condition you found there, and your examination and your diagnosis of that condition, can you tell us whether there might be or could be a causal relationship between the malignant condition found and the injury complained of by the boy? A. I don't know.

'Q. Would you say there could be or might be a causal relationship there?

'Mr. Dodge: After the Doctor has...