Wieda v. American Box Board Co., 17

• Decision Date: 03 October 1955
• Docket Number: No. 17,17
• Citation: 343 Mich. 182,72 N.W.2d 13
• Parties: Fred A. WIEDA, Plaintiff and Appellant, v. AMERICAN BOX BOARD COMPANY, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 13

72 N.W.2d 13

343 Mich. 182

Fred A. WIEDA, Plaintiff and Appellant, v. AMERICAN BOX BOARD COMPANY, Defendant and Appellee.

No. 17.

Supreme Court of Michigan.

Oct. 3, 1955.

Campbell & Campbell, Manistee, for plaintiff and appellant.

Lacey, Jones & Doelle, Detroit, for defendant and appellee.

Before the Entire Bench.

CARR, Chief Justice.

It does not appear that any material facts in this case are in dispute. On February 15, 1952, and for several years prior thereto, plaintiff was employed by defendant as a turbine operator. He was on said date 39 years of age. His employment was concerned with the operation of a steam turbine which generated electricity for the use of defendant's plant. Said turbine was located on two floors, or levels, of the building in which it was placed, separated by a set of metal stairs comprising 26 steps. He was required each hour to make a tour of inspection of the equipment to ascertain if it was operating properly, such tour requiring approximately five minutes. Otherwise he observed certain gauges and meters in the furtherance of the same general purpose.

In connection with his work plaintiff was furnished a list of specific instructions as to what should be done in case of a power shortage. It appears from his testimony that one such shortage had occurred when he was on duty prior to February 15, 1952. The employer had also caused drills to be carried out by employees connected with the operation of the turbine, the purpose being to prepare each one concerned with reference to the course to be followed in event of the occurrence of a power shortage.

On the date mentioned plaintiff began work at 10 o'clock in the evening. Approximately an hour later, while in the washroom, he heard a noise that caused him to hurry up the stairs to the second floor. He then discovered that the voltage was out of control. From then on it appears that he followed the instructions that had been given to him, taking each step as directed and without any uncertainly on his part as to what it was necessary to do. In the course of his operations another employee, who was plaintiff's superior in the plant, came to his aid. They finally succeeded in getting the equipment working and were advised by another employee that they might turn on an auxiliary switch, which operation resulted in the receipt of electric current from the Consumers Power Company. The turbine was then started. The entire operation consumed approximately 45 minutes.

In endeavoring to restore the turbine to its normal functioning plaintiff hurried, or ran as he testified, up and down the stairs referred to at least six times. His instructions did not specifically require him to run, but apparently he was anxious to restore the equipment under his supervision to its normal operation as soon as possible. At one time during the 45-minute period referred to he experienced a dizzy feeling, which he testified passed away as the result of his shaking his head. After the situation had been corrected, however, he again experienced dizziness, and he was taken to the first aid room of the plant and then to a hospital where he remained for approximately 10 hours. Thereafter he returned to his home and remained in bed for a period of about three weeks.

On April 28, 1952, as found by the workmen's compensation commission, he was employed by defendant as a first aid attendant, which position he held until September 12th following when he was laid off. His application to the workmen's compensation commission for hearing and adjustment of his claim for compensation recited the occurrence on February 15, 1952, as above indicated. Following a hearing before a deputy commissioner an award of compensation was made which, on appeal to the commission, was set aside. On leave granted by this Court, plaintiff has appealed.

The physician who attended plaintiff on the occasion in question was called as a witness in his behalf, testifying that plaintiff had suffered a heart attack referred to as a coronary infarction or coronary occlusion. He summarized his diagnosis of plaintiff's trouble as follows:

'This particular type of infarction that he had, in my opinion was this: That his circulation, his coronary circulation, was sufficient to take care of the needs of his heart under ordinary conditions. There was probably--must have been--narrowing of the lumen, that is, of the hold in the blood vessel, and this sudden exertion made the heart demand more blood and it couldn't get it. Consequently he had an ischemia present in the heart muscle due to the fact that that particular part of the blood vessel didn't give the heart muscle enough blood, and that developed into the infarction.'

The witness further indicated in his testimony, in accordance with the above quoted statement, that plaintiff on the 15th of February, 1952, did not have a normal heart, and that the coronary thrombosis or occlusion that he then had indicated such fact. It thus appears that there was testimony before the deputy commissioner indicating that there was a pre-existing heart condition apparently unknown to plaintiff. Undoubtedly his activity during the 45-minute period following the power failure aggravated this condition and brought about the heart attack

Plaintiff bases his claim for compensation on part 2 of the workmen's compensation law. ¹ It is urged, in substance, that the power failure was a fortuitous event, that it resulted in plaintiff's disability, and that the compensation commission was in error in declining to award him compensation. The primary question at issue is whether the statute may properly be interpreted as covering the factual situation presented on this record. It is apparent that the failure of the turbine to function properly was not the result of an accident in the ordinary acceptance of that term. Such failure had occurred on prior occasions and once, at least, when plaintiff was on duty. The conducting of drills in order to prepare defendant's employees concerned in the operation of the turbine for any such occurrence, and the giving of specific instructions as to each step to be followed in remedying the situation, must be regarded as indicating that power shortages were anticipated by the employer and said employees. The loss of power on the occasion in question may not be regarded as accidental or fortuitous.

It must be borne in mind also that plaintiff's disability did not result directly from the power shortage or from any accidental occurrence in the course of or arising out of his employment. Rather, his unfortunate condition was brought about by his own acts during the 45-minute period following the development of the power shortage. His running up and down stairs was actuated by his own desire to restore the operation of the turbine as soon as possible. A conclusion that there was an accidental occurrence bringing about the heart attack may not be predicated, under the facts here involved, on the fact that his exertions in conjunction with the pre-existing heart condition brought about the result. In Robbins v. Original Gas Engine Co., 191 Mich. 122, 128, 157 N.W. 437, 439, it was said in referring to the distinction to be observed between the means by which an injury is produced and the result of the producing cause or causes:

'It is not sufficient that there be an unusual and unanticipated result; the means must be accidental--involuntary and unintended. There must, too, be some proximate connection between accidental meand and the injurious result.'

The foregoing statement was quoted by this Court in the recent decision in Nichols v. Central Crate & Box Co., 340 Mich. 232, 235, 65 N.W.2d 706. See, also Kutschmar v. Briggs Manufacturing Co., 197 Mich. 146, 150, 163 N.W. 933, L.R.A.1918B, 1133.

In United States Mutual Accident Association v. Barry, 131 U.S. 100, 121, 9 S.Ct. 755, 762, 33 L.Ed. 60, the court, in construing an insurance policy, said:

'* * * if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected unusual, occurs which produces the injury, then the injury has resulted through accidental means.'

In the instant case, as above pointed out, there was nothing in the occurrence preceding plaintiff's acts that resulted in his disability that was unforeseen or unexpected. On the contrary, power shortages were anticipated and arrangements made to deal with them in a proper and methodical manner when they occurred. An unfortunate result may not be given the retroactive effect of making a particular event or happening accidental in nature which was not of such character when it took place.

This Court has repeatedly considered cases involving situations analogous to that in the case at bar. In Hagopian v. City of Highland Park, 313 Mich. 608, 22 N.W.2d 116, it was held that an employee engaged in lifting cans containing rubbish and who suffered an acute heart ailment was not entitled to compensation, said ailment being an ordinary disease of life to which the public generally is exposed and from which plaintiff had suffered prior to the attack on which his claim was based. As in the case at bar, it was not argued that the heart condition was an occupational disease. Likewise, as here, there was no accident. In O'Neil v. W. R. Spencer Grocer Co., 316 Mich. 320, 25 N.W.2d 213, 214, dependents of an employee of the defendant company sought to recover compensation because of his death which was claimed to have resulted from undue exertion on his part in operating his automobile in heavy snow. There was no showing of an accident in which the employee was involved. In holding that the statute did not authorize the payment of compensation under the facts, it was said:

'In our opinion, plaintiffs have failed to supply...