Trumble v. Mich. State Police
Decision Date | 29 June 1949 |
Docket Number | No. 35.,35. |
Parties | TRUMBLE v. MICHIGAN STATE POLICE et al. |
Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Workmen's Compensation Commission.
Workmen's compensation proceedings by George Trumble, opposed by Michigan State Police, employer, and State Accident Fund, insurer, for injuries. From an award for plaintiff, the employer and insurer appeal in the nature of certiorari.
Case remanded for entry of an order denying compensation.Before the Entire Bench.
George Trumble, in pro. per.
Harry F. Briggs, Lansing, Stanley Dodge, Lansing, of counsel, for defendants-appellants.
Plaintiff fails to establish that his disablement arose out of his employment. For that reason I do not concur in affirming the award.
Plaintiff was employed as a janitor at the State Police post in East Lansing. On October 3, 1947, at 4 o'clock in the morning he started his work as usual. His work was ‘to clean and dust and mop, clean the toilets, such as that-clean up the place generally.’ He testified that nothing ‘out of the way’ happened to his eye after he went to work:
‘A. Yes. I was all right. I didn't notice anything out of the way, and I don't know, about half past six or seven o'clock, I noticed my eye beginning to bother me.
* * *
‘A. So I kind of touched it up that day, and rubbed it, maybe, a little bit, and the next day I came to work and I saw a fellow out in the outside, and he says, ‘What's the matter with your eyes?’'
He continued to work until October 6th. His eye ‘kind of smarted,’ and grew worse. His work had been ‘to pick up the papers, and such as that,’ then he went around to sweep and dust, then ‘to clean the drinking fountains and the toilets, and such as that.’ There was no testimony that in cleaning the toilets he used any acid or caustic or other material which should be kept away from contact with the eyes. When asked about cleaning toilets, he testified:
‘Q. Had you done any toilet cleaning that morning? A. Oh, yes, we have three--
Q. I mean, had you done it before this started bothering your eye? A. Well, I don't think that morning, before I noticed it bothering me.'
There is no question but that plaintiff first noticed that something was wrong with his eye, during the course of his employment. There is an utter absence of any proof that the ‘very bad ulcer’ on the cornea of his eye arose out of his employment. His witness, the ophthalmologist who was allowed $243 by the award for medical fees, testified in substance that if plaintiff had gotten something into his eye, that might have caused the ulcer. But there was no testimony that any foreign substance had gotten into plaintiff's eye while he was at work. In fact, plaintiff's own testimony is to the contrary. Plaintiff himself, when asked repeatedly whether anything ‘splashed’ into his eye, whether any particular thing ‘happened’ to his eye, would only say that ‘it just started to smart that morning,’ and when squarely asked whether he was sure he got anything in his eye, he said ‘Well, I don't know what happened to it.’ Furthermore, the building superintendent testified that on the morning of October 3d plaintiff approached him and asked him to look in plaintiff's eye, that he lifted the lid, looked in the eye, and ‘was unable to detect anything in the eye.’ The ophthalmologist, who was plaintiff's witness, testified that ‘any injury to the eye might cause an ulcer,’ and that it might possibly come from a systemic condition.
An applicant for compensation must in some manner, beyond mere speculation, establish that his disablement arose out of his employment. Merely to show that it was discovered while in the course of his employment is not sufficient. This is fully supported by the cases from which Mr. Justice North quotes as follows:
Ginsberg v. Burroughs Adding Machine Co., 204 Mich 130, 170 N.W. 15, 18.
‘The burden of furnishing evidence from which the inference can be legitimately drawn that the injury arose ‘out of and in the course of his employment’ rests upon the claimant.' McCoy v. Michigan Screw Co., 180 Mich. 454, 147 N.W. 572, 573, L.R.A.1916A, 323.
Riley v. Kohlenberg, 316 Mich. 144, 25 N.W.2d 144, 146.
Beginning with the enactment of the present workmen's compensation law in 1912, it has been consistently held that an injury, to be compensable, must ‘arise out of’ as well as ‘in the course of’ the employment. That was required by section 1 of part 2 of the act as originally passed in 1912. The same requirement remains unchanged through many subsequent amendments to the law.1
In Rayner v. Sligh Furniture Co., 180 Mich. 168, 146 N.W. 665, 666, L.R.A.1916A, 22, Ann.Cas.1916A, 386, concerning an accident which occurred about two months after the effective date of the act in 1912, this Court said:
In Hills v. Blair, 182 Mich. 20, 148 N.W. 243, 245, discussing an accidental death which occurred about ten weeks after the effective date of the act, the Court said:
In Hopkins v. Michigan Sugar Co., 184 Mich. 87, 150 N.W. 325, L.R.A.1916A, 310, the Court (syllabus) held: ‘To justify an award of compensation to an injured employee the accident must have arisen out of as well as in the course of his employment; the two are separate questions to be determined by different tests: ‘out of’ points to the cause or source of the accident, while ‘in the course of’ relates to time, place, and circumstance.'
The above statements have been repeated, in various ways, in many subsequent decisions of this Court. Recently Mr. Justice Bushnell, writing for the Court in Appleford v. Kimmel, 297 Mich. 8, 296 N.W. 861, 862, quoted with approval as follows:
In Simpson v. Lee & Cady, 294 Mich. 460, 293 N.W. 718, 719, Mr. Justice Butzel, writing for the Court, said: ‘The compensation law is to be liberally construed to provide indemnity for accidents peculiarly incidental to employment, but it was not intended to be health, accident and old age insurance and spread general protection over risks common to all and not arising out of and in the course of employment.’
To uphold the award in this case, we must find in the record some evidence that the ulcer on the cornea of plaintiff's eye was caused by some foreign substance that got into the eye after 4:00 a.m. and before 6:30 or 7:00 a. m., on the morning of October 3, 1947, while plaintiff was at work for the defendant State Police. To establish his right to compensation, plaintiff must show something more than the mere fact of his employment during that time as a janitor and the discovery, during the course of his employment, that something was wrong with his eye, and three days later that an ulcer developed on the cornea of one of his eyes.
The case should be remanded for entry of an order denying compensation.
Plaintiff was awarded compensation for the personal injury hereinafter noted at the rate of $20.77 per week for a short period while he was kept from his employment, and also $243 was awarded to his...
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