*1 Clingerman 13 1968] v. Bruce. Dissenting Opinion by Levin, may deciding jury tlie contested issues so 7 well-instructed, knowledgeable jury. be a judge The manner in which the trial sets forth party’s theory each within his discretion; is it is upon request, not within his discretion to refuse, parties’ concerning to instruct relevant theories.8 grant I would reverse and a new trial. 7 jury during “The was entitled have before it its consideration (where, here, the ease both and defendant’s theories support them)

there was Sword v. applicable evidence and law thereto. Keith, Railway 247; 31 Mich Toole v. Consolidated Street Co., Park Auto (25 379 Neg 169); Mich LRA 4 Am Cas Webber v. Transportation Co., (244 Wash 325 P 47 ALR 590) ; Jur, Trial, 626, p Gapske 53 Am 487.” v. Hatch Mich 658. party is theory ease, sup- “Each entitled to have his if evidence, ported by explained jury. party stress to the The theories of each thereby fairly, and issues to the be giving equal raised must stated positions party. of each In stating jury, the issues to the allegations, denials, and parties admissions both should be clearly as Instructions should be succinctly instructions, and stated in outlining the issues presented by pleadings parties of all and the evidence. specific respect concrete with 2 to the faets Honigman and issues and not abstract in character.” Hawkins, & Michigan GCR (2d Rules ed) 562, Court Annotated authors’ comments to

ADCOX NORTHVILLE LABORATORIES, INC. Court. Aseptic 1. Words and Phrases — Necrosis. Aseptic portion oeeurring neerosis is death a of tissue the absence of bacterial infection. Compensation Develop- Subsequent 2. Workmen’s —Further of Fact. Question ment — injury whether workmen’s claimant’s Question subsequent development which would amount to References for Points in Headnotes Jur, Compensation 58 Am Workmen’s [1-7] [8] §§ Jur, Compensation 58 Am Workmen’s of the same a continuation or new fact, question not of he had suffered before causality (CL law, requires a determination because 1948, §413.12). *2 Development Finding Subsequent — 3. Same —Further Fact. board, compensation appeal Finding of fact workmen’s hip disability, aseptic necrosis of his caused claimant’s following repair hip plaintiff suffered a work- of the after disability injury, of the same was a continuation connected already paid a compensation been rather than had for which amounting subsequent development a new dis- to further and competent upon ability, upset on where based cannot be (CL 1948, §413.12; §413.14, if no fraud is shown evidence 44). by PA No amended Testimony Aseptic— Necrosis. 4. Same —Evidence—Medical only rarely develops Testimony by physician that necrosis trauma, primarily result of a spontaneously, age hip that, considering claimant’s on his with treating pins, doctor should have been aware of 3 insertion might developed, and that it would have that such condition developing a condition to be con- unusual for such not be trauma, original supports a tinually the time of the from compensation appeal board a further and not sustain the burden did claimant amounting disability, development a new rather subsequent to original continuing disability injury an to his than a §413.14, PA (CL 1948, §413.12; as amended hip 44). No. Compensa- Application Aseptic Further for 5. Same — Necrosis — tion. compensation by plaintiff for further who received Application employment, hip while the course of his a fractured year, for released for work but benefits over a was received hip experienced pains in his months later severe about by aseptic necrosis, years applied eaused later were which year compensation prior for 1 for and received application on, held, properly application and from date of year prior as to which was more than 1 denied filing prove an where did not date of development dis- a new or further which amounted to new ability (CL 1948, §413.14, 44). PA as amended 1968] Adcox v.

Dissenting Opinion.

T. G-. Kavanagh, Compensation 6. Workmen’s —Words Phrases —Further Development. development” The term compensation in worlcmen’s law “further disability means a compensation which did not exist when initially. was allowed Eligibility—Date op Disability. 7. Same — disabling, date a condition becomes rather than when the pathological development begins, eligibility determines for worlcmen’s Disability—Aseptic 8. Same — Necrosis —Limitation Further Compensation. a limitation on for paid, some but where for paid no by aseptic pathological necrosis which development started its with an original injury, but did not become a condition years later, until applied applica- it should not be to an 1-1/2 *3 years tion it became for filed after (CL 1948, §418.14, by 1965, 44). as amended LA Appeal Compensation Appeal from Workmen’s Board. Submitted Division 1 1967, October at 3, (Docket 2,976.) April Detroit. No. Decided 3, 1968. appeal granted Leave to June 1968. See 381 27, Mich

Rawleigh presented R. Adcox his claim for com- pensation against Northville Laboratories, Inc., Michigan Liability Company injuries Mutual for employment. sustained in the course his Ref- partial plaintiff’s application eree’s denial of af- by appeal appeals. firmed board. Plaintiff Af- firmed. Downing plaintiff.

Kelman, Loria, Schneider, & for $ LeVasseur, Werner, Broivn, for defend- Mitseff ants. ap- Rawleigh R. Adcox Plaintiff H. J. Gillis, peals of the workmen’s a decision partial affirmed referee’s hoard which hearing and ad- plaintiff’s for denial of by employed justment Plaintiff had been claim. in- when Laboratories, Inc., defendant jured, Liability Michigan Mutual defendant compen- employer’s Company carried the coverage. sation his February course while in the 23, 1961, On hip.

employment, plaintiff Cor his left fractured pins required in were was rective serted recovery hip. By spring 1962, in complete sufficiently allow him was treating physician released to work. The return compensa plaintiff April 1962, and, 30, for work on plaintiff payments was However, ceased. tion employer previous reason, for the his rehired plaintiff time. at that was slow told, that work began August ex 1962, 1, On or about hip, periencing increasingly pains in left his severe symptoms leg. length of his which extended were caused of the head necrosis1 hip point socket. insertion left femur at filed received and A letter written Sep- compensation department on the workmen’s formally applied for Plaintiff tember whereupon defend- on November liability voluntarily for benefits assumed ants the commencing period After 2 November compensa- hearings, referee awarded additional September to Novem- for the tion ber *4 given reason for this award 1964; the 11, September to be 17, that the letter filed application an for further as treated occurring in portion of the Aseptic necrosis is “death of tissue 2 Cantor, Medicine and bacterial infection.” Traumatie absence of Surgery Attorney, p 105. for the 1968] Adcox the Court. request compensation period

Plaintiff’s for the August September 1,1962, 17,1964, was denied § on the basis 1948, of CL as 413.14, amended (Stat PA No 44, effective Ann June Snpp 17.188).2 compen 1968 Cum The workmen’s ruling sation affirmed board this on October 31,1966; board held “that the has not borne development his burden of a new or further jn disability.” which would effect amount to a new parties stating question concur in the to be: Michigan “Is claim for benefits under the compensation August workmen’s law, 1, 1962 September by part 17, 1964, barred compensation act?” escape one-year-back Plaintiff seeks to rule contending that the the subsequent necrosis was result of a “further and development” and was not a continuation of the same already for which had been paid. maintain Defendants that the condition was subsequent development” not a “further and one-year-back applies. thus the question Plaintiff’s brief characterizes this of law and not of fact. cannot We assent to this proposition. Concededly, the line between “law” and always easily Though “fact” drawn.

phrase legalistic ring, repre- involved here has a causality, pecul- sents determination ais iarly inquiry. factual The determination is not to be upset upon competent if based evidence, Carter v. Corporation General Motors 361 Mich part payment relevant reads: “If is made (other expenses) than medical an for further com- pensation be awarded commission, is later filed with no shall any commission for which is more than I year prior to the filing application,” date sueh

18 Mich Cotjkt. Opinion the Pine shown, and if no Martin v. White fraud Copper Company (1966), 37.3 only testimony presented case in this medical rarely spon- aseptic develops only that necrosis was taneously, primarily trauma, the result plaintiff’s age (60) considering and the that, treating pins, doctor should with insertion of 3 “the may develop.” be aware that a condition such When not would unusual such asked whether it be continually developing from the time condition to be of responded, original “That doctor trauma, is true.” supports opinion, testimony our this

In plaintiff not sustain the burden of did subsequent development,” one is, “further injury ray Mur with results. Palchak v. distinct See Corporation (1947), 318 Mich America

Affirmed. Costs to defendants. H. G-illis, C. concurred with J. J., J.

Lesinski, (dissenting). The medical tes- T. G-. Kavanagh, my timony board, set out in before the support only opinion, one will conclusion: Brothers’ is a from necrosis further subsequent development entitling to com- 1-year applied pensation. rule should be August, deny plaintiff’s claim for September, (al- (1959), Loucks v. Bauman Mich 514 In applied though be- held seeking cause existing injury”), “disability from the date of for a development” was “a “further defined as term (Stat 17.186) Ann 413.12 1960 Rev and GCR CL See 801.1, as amended. 1968] Adcox v. Nürtiiville Dissenting ICavanagii, T. 0. which did not exist when initially.

was allowed” 356 Mich 517. See also Morgan Lloyds Builders, Inc. 344 Mich *6 inescapable

In the case at bar the conclusion is aseptic pathological that the necrosis started its de- velopment with the trauma, did not become a but August, condition until 1962. It is the disabling, date that the condition becomes rather pathological development begins, than when the eligibility determines

rule is a limitation on further for a paid. for which some paid was ever here for the disabil- ity necrosis.

I would reverse.

SCHUHARDT JENSEN. Judgment Finding — of Fact —Offset—Interest. Finding of any obligation trial court owed to defendants was offset interest owed latter the former necessarily implies money had lent defendants. Independent 2. Same —Res Judicata —Unused Claim. litigant A right whose independent relief is affirmative of a against cause action asserted him but used as a defense seeking is barred from in subsequent affirmative relief thereon proceeding. [1-3, ^[4] 12 Am Jur 5] 30A Am References 2d, Jur, Bills and Notes Judgments for Points 382 et in Headnotes seq.