Putnam v. Beechler

• Citation: 299 Mich. 552,300 N.W. 880
• Decision Date: 02 December 1941
• Docket Number: No. 54.,54.
• Parties: PUTNAM v. BEECHLER et al.
• Court: Supreme Court of Michigan

299 Mich. 552

300 N.W. 880

PUTNAM

v.BEECHLER et al.

No. 54.

Supreme Court of Michigan.

Dec. 2, 1941.

Proceeding under the Workmen's Compensation Act by Marcus L. Putnam, employee, opposed by Cash R. Beechler, employer, and Michigan Mutual Liability Company, insurance carrier. From an award of the Department of Labor and Industry granting employee compensation for total disability, together with medical and hospital bills, the employer and insurance carrier appeal.

Award vacated.

Appeal from the Department of Labor and Industry.

Argued before the Entire Bench.

L. J. Carey and Geo. J. Cooper, both of Detroit, for appellants.

G. E. McArthur, of Eaton Rapids, for appellee.

STARR, Justice.

This is an appeal by defendants from order and award of the department of labor and industry, entered December 18, 1940, granting plaintiff compensation of $18 per week for total disability, together with medical and hospital bills. Such award reversed an order of the deputy commissioner denying plaintiff compensation on the ground that ‘the proofs show an injury but fail to show the injury to be of accidental origin.’

Plaintiff was employed by defendant Beechler as manager of a movie theatre in Eaton Rapids. His duties included putting up theatre advertising sheets or posters each week. On May 17, 1940, plaintiff went into the C. J. Moore Implement store in Eaton Rapids intending to place a poster in the front window. He had been putting up posters in such store window for over two years. The window extended across the front of the store, with a wooden ledge or casing, four or five inches wide, located 27 inches above the floor. About six feet above the floor another wooden ledge extended across the window, and the top window frame was about two feet above such ledge.

Plaintiff intended to step up on the lower window ledge and tack a poster along the top frame, so that the poster would hang down in the window. He put his left foot on the lower ledge, grasped the second ledge with his left hand and, as he attempted to ‘push and pull’ himself up on the lower ledge, his right leg ‘suddenly gave way’ and he fell down ‘in a heap.’ The tibia bone in his right leg was broken three or four inches below the knee. Plaintiff, the only witness in his behalf, on direct examination testified in part as follows:

‘Q. And what were you doing at the time that this accident happened? A. I was attempting to step up on this window ledge, and pull myself up with this upper piece, you see, and stand up there and thumb tack these one-sheets up. That is the way we had always done it. * * *

‘Q. * * * Well, now, what happened as you attempted to pull yourself up? A. Well, I just,-I don't know. I just went in a heap, and I had this sensation that you get when you break a bone.

‘Q. You have had that sensation before, have you? A. Yes, I have.

‘Q. Can you describe that sensation a little more? A. The nearest thing I can say is that to me, anyway, it was just like someone had a red hot knife, just cutting across the leg. I don't know whether that is the sensation that always exists with a broken bone, but that is the sensation that was there.

‘Q. And did you collapse? A. I went right onto the floor just in a heap.’

On cross-examination plaintiff testified:

‘Q. And it had been your habit, or your custom, in putting this up once a week, to put your left foot, I believe, on this lower ledge, is that right? A. Yes, sir.

‘Q. Your left hand up on the second ledge? A. That is right.

‘Q. And then raise,-push yourself up with your right leg, is that it? A. Push and pull.

‘Q. Push and pull. Then you would get on this ledge and thumb tack the one-sheet on? A. Yes, sir.

‘Q. As you were doing this on this particular day, your right leg suddenly gave way? A. Yes, sir.

‘Q. As you were attempting to push yourself up. You were doing that on this particular occasion just the same as you had always done it? A. Yes, sir.

‘Q. The only thing unusual was the fact that your leg just gave way? A. Yes, sir.

‘Q. Now, I believe that in the years past, you have had previous difficulties with your leg? A. I had it broken two years ago.

‘Q. You had it broken two years ago? A. Well, about a year and a half ago.

‘Q. You fell down, then, after your leg collapsed, is that right? A. Well, now, I would hate to take an oath on which happened first. I went in a heap there.

‘Q. You went in a heap there? A. Yes, sir, that is right.

‘Q. But it was your leg snapping first that let you down? A. I suppose that is right, yes, sir.

‘Q. You didn't slip or anything like that? A. I couldn't answer that.

‘Q. You couldn't answer that? A. I don't know.

‘Q. All you know is that as you were attempting to raise yourself, you just collapsed? A. That is right.’

Defendants contend that plaintiff did not sustain an accidental injury arising out of and in the course of his employment, and that his injury resulted from a diseased condition of his leg bone.

Defendants called Dr. Carl S. Davenport, who had X-rayed plaintiff's leg in December, 1938, following his first injury and had also X-rayed plaintiff's leg in August, 1940, following the injury in question. Dr. Davenport testified regarding the fracture of plaintiff's leg in 1938 as follows:

‘Q. Doctor, did you have occasion to take X-rays of Marcus Putnam's leg several years ago, when he had had a fracture of the leg? A. I did. * * *

‘Q. Doctor, will you tell us what Exhibit No. 2 reveals? * * * A. It shows a fracture of the tibia approximately three inches below the knee. The tibia, from the knee to,-oh, down here for a distance of about 10 inches, shows quite extensive alteration of the bone structure and architecture, by disease process.

‘Q. This disease process which extends downward from the knee, on the tibia, about eight or nine inches, Doctor, is that in any way related to that fracture which is there? I mean did the fracture cause this diseased process? A. I feel not. I feel that the bone disease was a preexisting process.

‘Q. Is that diseased condition quite obvious in the X-ray plate? A. Very evident, yes.

‘Q. That shows a considerable thickening of the bone,-of the tibia, itself, doesn't it? A. It shows a widening, as if by expansion of the process, growing very thin, or enlarging very thin.

‘Q. Now, that fracture line of the break, is that practically straight across? A. Almost a transverse type of fracture, without displacement.’

Dr. Davenport also testified regarding plaintiff's injury, being considered in this case, as follows:

‘Q. Now, Doctor, I show you Exhibits 4 and 5, and ask you to identify those? A. Those are films of the same area, same leg of the same patient, Marcus Putnam, taken August 1, 1940. * * *

‘Q. Doctor, will you tell us what Exhibits 4 and 5 show? A. I mentioned that these were of the same area of the same leg. They show the same general diseased process of the tibia, with practically no alteration in its appearance, but on these films there is another fracture line shown, approximately 3/4 of an inch lower than the one shown on the earlier film, roughly in the same direction,-a transverse fracture, slightly greater obliquity than was shown on the first fracture.

‘Q. Then you say, Doctor, that the fracture shown in Exhibits 4 and 5 is not the same fracture shown in Exhibits 2 and 3? A. I believe it is an entirely separate fracture.

‘Q. It is also in a different area, is it not,-slightly lower? A. About 3/4 of an inch lower level.

‘Q. And at the angle-A. Slightly different angle, but--

‘Q. In your opinion, Doctor, is this second fracture,-that is, the fracture that is shown in the Exhibits 4 and 5, in any way associated with the fracture shown in Exhibits 2 and 3? A. I can see no relationship.

‘Q. Now, Doctor, what in your opinion could cause a fracture such as you saw in Exhibits 4 and 5, taking into consideration the condition of the bone? A. A fracture is always produced by stress,-force.

‘Q. Well, in the,-the history that has been given here, Doctor, in that this man had placed his left foot on a ledge 27 inches from the floor, that he put his left hand on another ledge that was four feet above the first ledge, or the ledge on which he had his left foot, and that he was both pulling upwards with his left hand and pressing downwards with the right leg, when his right leg suddenly collapsed. Now, could the fracture that you see in Exhibits 4 and 5 be the result of such an occurrence? A. I believe so.

‘Q. Would it be necessary, Doctor, where you have a bone condition such as is shown in these X-rays, to have anything unusual occur to cause such a fracture? A. Not unusual. It is merely the degree of stress or force applied in relation to the strength of the bone. I believe this bone is weakened, and without any means of measuring the stress, it is just the relationship between those two things.

‘Q. Well, do I understand, Doctor, that because of the diseased condition of this bone, that it is more susceptible to fracture than normal bone? A. I believe so.

‘Q. And with a diseased bone such as this is, it is liable to break at any time, is that it,-as I understand it? A. I would be afraid that it might.’

The department, in its opinion reversing the deputy and awarding compensation to plaintiff, stated in part:

‘We think that under the decisions of the court the occurrence of the accident raises the natural inference that it arose out of the employment. * * *

‘We think to find the weakened bone caused the fall is conjectural.’

The department, in its opinion, and plaintiff's counsel, in his brief, rely upon the cases of Rogers v. Ford Motor Co., 287 Mich. 104, 282 N.W. 918, and De Mann v. Hydraulic Engineering Co., 192 Mich. 594, 159 N.W. 380, in which the employees were found dead, and also the case of Dulyea v. Shaw-Walker Co., 292 Mich. 570, 291 N.W. 10, in which the employee was found unconscious and died without regaining consciousness. In such cases there was no testimony showing the circumstances under which...