Riley v. Kohlenberg

• Decision Date: 02 December 1946
• Docket Number: No. 12.,12.
• Citation: 316 Mich. 144,25 N.W.2d 144
• Parties: RILEY v. KOHLENBERG et al.
• Court: Michigan Supreme Court

316 Mich. 144

25 N.W.2d 144

RILEY

v.KOHLENBERG et al.

No. 12.

Supreme Court of Michigan.

Dec. 2, 1946.

Application for Leave to Appeal (In Nature of Certiorari) from the Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act in the matter of the award of compensation for the death of Frank D. Riley, employee, to the second injury fund, opposed by Samuel Kohlenberg, Kohlenberg Furniture Company, employer, and New Amsterdam Casualty Company, insurer. To review the award, employer and insurer apply for leave to appeal in the nature of certiorari.

Award vacated.

Before the Entire Bench, except DETHMERS, J.

Walter A. Mansfield, of Detroit, for defendants and appellants.

John R. Dethmers, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and Daniel J. O'Hara, Asst. Atty. Gen., for the People.

NORTH, Justice.

This is an appeal by the employer and the insurer from an award of compensation to the second injury fund in this State. See Act No. 245, Pub.Acts 1943, p. 249, sec. 8424, Stat.Ann. 1945 Cum.Supp. sec. 17.158[1]. For convenience we herein refer to the employee, Frank D. Riley, as plaintiff. While in the employ of the defendant furniture company Riley came to his death October 20, 1944. He left no dependents. After a hearing in response to its order to show cause, the department found: ‘the evidence is sufficient to support the finding of the Deputy Commissioner that the fatal injury arose out of and in the course of the employment * * *,’ and ordered the defendant furniture company ‘to pay One Thousand Dollars ($1,000.00) into the State Treasury for the Second Injury Fund.’ Two contentions are made by appellants: (1) That there is no evidence of a personal injury within the meaning of the compensation act; (2) that there is no evidence that the employee's death resulted from a personal injury or evidence from which that inference may be drawn.

At the outset it may be noted that there is no claim that the employee's death resulted from an occupational disease. So the controlling question on this appeal narrows down to a determination of whether there is any competent testimony from which the inference may be reasonably drawn that plaintiff suffered a personal injury arising out of and in the course of his employment, which injury caused his death.

Plaintiff was employed as a truck driver by defendant furniture company, and in part his duties involved the delivery of its merchandise. On October 20, 1944, with the assistance of one Steve Szabo, plaintiff undertook to deliver some furniture and a mattress. While carrying the mattress upstairs with Szabo's assistance, plaintiff fell backward and down about seven steps of the stairway. The record disclosed nothing on or about the stairway to which the fall could be attributed and Szabo testified that he did not have any idea what caused plaintiff to fall. Szabo heard the noise of the deceased rolling down the stairs and thereupon went to the foot of the stairs and picked plaintiff up. The latter was either dead at the time or died within a space of two minutes. After the fall there was a cut over the right frontal area of plaintiff's forehead about one and a half inches and there were abrasions over his left forehead, on the left cheek and the left upper lip. An autopsy was performed from which it was found there existed the cuts and abrasions above noted, that plaintiff's heart was very large and dilated, no valvular lesion, that the coronaries were patent, that the myocardium exhibited some diffuse fibrosis, that the kidneys were congested, that there was edema of the lungs, and there was no evidence of skull fracture. Further, ‘There is some edema of the brain with atrophy of the evolutions. No hemorrhage anywhere within the cranial cavity. No evidence of fracture of cervical vertebrae.’

The cause of death was given as: ‘Terminal cardiac failure, and chronic myocarditis'; and there was testimony that this type of heart failure could occur with or without physical exertion, and that deceased's condition was such that his chronic condition could cause a heart attack or heart failure at any time. In appellee's brief it is pointed out that the employer's basic report of an industrial injury stated: ‘While carrying mattress, injured employee fell downstairs. Cause of fall unknown.’

Since by recent amendments to the workmen's compensation act injuries and deaths resulting from occupational diseases have been made compensable, many borderline cases, of which the instant case is typical, have been presented. In deciding such controversies it seems imperative that three principles be kept in mind: (1) The burden of proving a right to compensation is on the party asserting that right. Pucilowski v. Packard Motor Car Co., 278 Mich. 240, 270 N.W. 282;Veek v. Wesley Freight Co., 306 Mich. 485, 11 N.W.2d 213. (2) In awarding compensation to a plaintiff, the department may not indulge in the assumption of a mere possibility in the nature of a guess as to whether plaintiff is entitled to compensation. Ginsberg v. Burroughs Adding Machine Co., 204 Mich. 130, 137, 170 N.W. 15;Marman v. Detroit Edison Co., 268 Mich. 166, 255 N.W. 750. (3) Workmen's compensation provided by the act is not intended to be either sickness,...