Wood v. Vroman, 84.

• Court: Supreme Court of Michigan
• Writing for the Court: SHARPE
• Citation: 184 N.W. 520,215 Mich. 449
• Parties: WOOD v. VROMAN.
• Docket Number: No. 84.,84.
• Decision Date: 03 October 1921

215 Mich. 449
184 N.W. 520

WOOD
v.
VROMAN.

No. 84.^*

Supreme Court of Michigan.

Oct. 3, 1921.

Error to Circuit Court, St. Clair County; Harvey Tappan, Judge.

Action by Peter M. Wood against Mason E. Vroman. Judgment for plaintiff, and defendant brings error. Reversed, and new trial ordered.

Argued before STEERE, C. J., and MOORE, WIEST, FELLOWS, STONE, CLARK, BIRD, and SHARPE, JJ.

[184 N.W. 521]

Moore & Wilson and Lincoln Avery, all of Port Huron, and Lodge & Brown, of Detroit, for appellant.

John B. McIlwain, of Port Huron, for appellee.

SHARPE, J.

The plaintiff in 1916 was an employee in an automobile repair shop operated by Beard, Campbell & Co. at Port Huron. He had at that time but little sight in his left eye, owing to an injury theretofore received. On July 31st, while testing ignition, some particles of dust and a piece of steel were blown into his right eye. He tried to remove them with a handkerchief he carried in the hip pocket of his one-piece suit, but did not wholly succeed. A similar, but unsuccessful, effort was made by a fellow workman named McLeod. Plaintiff testified that no tears formed in his eye as a result thereof, just a scratching sensation; ‘it did not bother me to speak of at all; didn't pain nor cause any tears to come to speak of no tears running out of my eyes or down my cheeks; I had no idea there was anything wrong with my eye that afternoon; I didn't know there was anything in my eye; I didn't know what made it scratch though.’

About five hours after he went to see Dr. Fraser, an eye specialist, but did not find him in his office. He had his eye examined by Dr. Heavenrich, a general practitioner, who officed with Dr. Fraser. It is plaintiff's claim that Dr. Heavenrich told him he could see nothing in the eye, but gave him a wash to use therein. Plaintiff testified: ‘The next mornign when I went to Dr. Vroman's office I was not suffering pain only just the scratching when I closed my lids.’ He further testified that Dr. Vroman, after looking in his eye, said he could ‘see it,’ and, with a small instrument, at once removed a particle of steel; that the scratching sensation was then gone; that the doctor then said to him, ‘You have a bad ulcer there on your eyelid; I guess I better open that;’ that he did so, and, after rolling some absorbent cotton ‘into a little lead pencil like shape,’ wiped it across his eye, thus putting the pus from the ulcer into that part of the eye from which the steel had been removed; that this caused him great pain, which continued after he went home, and resulted in the ultimate loss of the eye a few months thereafter. The defendant denies that he found or opened an ulcer on plaintiff's eyelid, and insists that the loss of plaintiff's eye was due to the infection carried into it by the particles of dust and steel or that reached it from the hands or handkerchiefs of the plaintiff or his fellow workmen in their efforts at removal.

The full proceedings relative to the payments received by plaintiff from the insurance company by whom his employer was protected are not in the record, but it appears that he has been paid $990 on account of his injury, and a tender was made to him of $10 making full payment of compensation, at the rate agreed upon of $10 per week, for the loss of an eye. In a receipt dated September 21, 1916, plaintiff acknowledged receipt of $10 ‘on account of injuries suffered by me, on or about the 31st day of July, 1916, while in the employment of said employer.’

The record also contains a compensation agreement entered into between plaintiff and the Travelers' Insurance Company, under which plaintiff was to receive compensation ‘at the rate of $10 per week during the period of disability,’ the injury being described thus:

‘While emplyed in his usual duties, injured received several pieces of steel in the right eye causing severe inflammation and irritation of the right eye.’

After receiving $990 and refusing to accept a further proffered payment of $10, plaintiff

[184 N.W. 522]

began this suit against Dr. Vroman, claiming damages for his unskillful conduct in wiping the pus from the ulcer over the ‘fresh wound’ in his eye, thereby infecting it and causing the blindness which followed. This suit was begun on July 29, 1918, three days before the right of action therefor would have been barred by the statute of limitations.

On October 23, 1918, nearly three months thereafter, the plaintiff wrote the following letter:

‘To the Industrial Accident Board, Lansing, Mich.-Gentlemen: In my own behalf I beg to offer as evidence in the closing of my case, Peter M. Wood v. Beard, Campbell & Co., the deposition of myself as taken by Ben Shepard is true as far as it goes, but it represents their side of the case, and I wish a fair trial as intended by our state Legislature, when the Workingmen's Compensation Law was enacted. First, as I will prove later on the law intended to compensate for injury in proportion to the permanency of the disability to earn his weekly wage. Total disability resulting from an injury was to be compensated with not to exceed ten dollars per week for not to exceed four hundred weeks.

‘If a man lost a leg and died as the result of the loss of the leg, he would receive compensation for death. If a man lost a hand and died from the results of the loss of that hand, he again would receive compensation for death and not just the loss of the hand. If a man received an injury to his eye and as a result an affection of the brain caused death with resulted from the injury to the eye, he would again receive compensation for death and not merely for the loss of the eye. That is to say, from the wording of the compensation law it is very evident that the intent of the law was to compensate for the resultant effects of such injury received. As the result of the injury I received to my eye I am totally disabled and therefore come under section 9 of the Compensation Law.

‘In the Weaver v. Maxwell case the Travelers take it upon themselves to seek protection for the employer by a clever interpretation of the question as to what degree the first employer was responsible for the total injury to Mr. Weaver, and by a simple mathematical calculation they subtracted one eye from the first employer and left one for the other employer to be responsible for . One little fact they forgot to do was to take consideration of the fact that one eye was worth one thousand dollars by the wording of the law and two eyes are worth four thousand dollars. Now we will carry out the calculation which the Travelers started, but apparently chose to neglect to work out to a finish and prove. By subtracting the value of one eye, or one thousand dollars, from the value of two eyes or four thousand dollars, we have remaining a result amounting to three thousand dollars. This is not a bit unfair, as it is an undisputed fact that the loss of the remaining eye is of infinitely more harm of loss than the first eye. Again, I say I am asking for compensation for total disability which resulted from the loss of my right eye and the remaining sight of my left eye. The Travelers drew a parallel with the Weaver Case and try to forget that a man was totally disabled by the last accident which resulted in total blindness.

‘It may appear evident from the closing question of my deposition that I now have as much sight in my right eye as I had in the left previous to my last injury; but that is merely the result of a lack of information as in fact, to be more explicit, I cannot see even the largest objects unless between me and the light. A hand may be passed so close to my face as to touch me and yet but for my sense of hearing I would not be aware of it.

‘It is evident that the compensation law was evolved for just such a case as mine, because as is evident in my case the employer is trying to avoid the payment of a just claim. The Travelers will no doubt again claim that they are only seeking justice; but inasmuch as one thousand dollars for one eye was the stipulated amount and four thousand dollars was also the stipulated amount for two eyes then who should receive the remaining two thousand dollars as calculated by the attorneys during the Maxwell Case. For the law was undoubtedly very plain as to its intention. Apparently this phase of the case has not been brought to the notice of the Supreme Court. Beyond a doubt four thousand dolars is the sum stipulated for total disability, and I am disabled as all reports show. I have already received one thousand dollars and I am now petitioning that the Industrial Accident Board find me worthy of at least two thousand dollars more according to the disability clause, section 9 of the Compensation Law.

‘Perhaps more evidence of my disability is necessary. During the time I was in the employ of Beard, Campbell & Co. I received twenty dollars per week, and had three distinct offers of thirty dollars per week to go elsewhere. This shows my earning ability at the time of my injury, and I could now secure a position paying me the same or better wages if I could see enough to get around without aid from others. This then is my ability. Now as the result of my eyesight I cannot get a job at any price. The examining board at Port Huron just told me the other day that I was useless and placed me in class five. What is the cause of this difference in ability? Just the result of the loss of my eyesight at Beard, Campbell & Co. for which the Travelers are claiming to have fully paid me according to law.

‘In the Maxwell v. Weaver Case decision the way was left clearly open to my case in its most prominent point, to wit: If a man lost only one eye he could receive compensation for one eye or the amount of one hundred weeks, but if he suffered any further loss he should receive in proportion. I lost the sight which I enjoyed in both eyes and most all of my entire ability to earn my living for myself and family, and I emphatically demand that I...