*1 Co. 581 Lakey Foundry & Machine Croff CROFF v. LAKEY FOUNDRY MACHINE & COMPANY. Cоmpensation- -Nonaccidentai, Injury Equally — Workmen’s — Divided Court. compensation An award of disability core setter whose lifting 150-pound- found to been due to have box February, 1946, in employment the course of his but without by an having accompanied been event, aeeident fortuitous by equally divided (2 Comp. is affirmed an 1929, Laws court seq., 245, 8407 et as amended 1943). Act No. Pub. Acts § Appeal Department Industry. from of Labor and (Docket 8, 1947. No. October Calen- 23, Submitted April 43,802.) No. Decided 5, 1948. dar presented compensa- claim for Ernest Croff Ms against Lakey Foundry Company & MacMne tion injuries employ. sustained wMle its for Award plaintiff. appeals. Defendant Affirmed equally court. divided <$>Silthenga, plaintiff. for
Hinds
Joseph Riley, T. for defendant. (for affirmance). appeals J. Defendant Dethmers, department industry’s labor and award compensation granting plaintiff, 2 of workmen’s act,* re- seq., 2 Comp. 1929, Laws 8407 et as amended Act 245, No. § 1943, Acts last by 8408 et Pub. and as amended Act No. Pub. Acts (Comp. seq., Supp. 1945 Stat. Ann. 1945 Cum. Stat. Ann. and Supp. seq.). 17.141 et Michigan Eeports.
suiting arose out of from a and in of his without the course *2 happening or fortuitous event. an accident
Employed by for over setter as a core defendant injury, plain years immediately preceding his two tiff jacket setting from 90 to was accustomed lifting pounds, weighing and around 80 or cores, weighing possibly close cores, Hubbard two boxes of February day. pounds, per he to 150 On lifting. engaged At amount of about the usual p.m. from a cores 1:30 he lifted a box of Hubbard swung approximately floor, two feet above tbe line it around upon the floor. and set it down to one side sharp pain in his As he did he felt a click and a so, pain through shooting lower left back, the down his hip. quitting He continued work until usual his p.m., to work since has been unable time at 3:30 but plaintiff year had felt little before then. About a previously working, had and kink in his while back being heavy complained and the work too about February prior hurting 5th his but never back, pain experienced in his back had felt the same he day. that witness,
A as defendant’s testified doctor, called X-ray plaintiff’s eight pictures that taken back, injury, lesion months after the disclose a destructive involving fifth and that lumbar vertebra, probable diagnosis is in- most as to cause thereof possibility malignancy fection, with a of cancer or period during vertebra; of the that of time going process had on destructive been (thus failing to indicate not be determined could February 5th or it whether ante-dated process not); exists that when such destructive heavy lifting the vertebra in a could cause vertebra, appearance give quash down or crumble and pic- X-ray presented testified was which he & Mаchine Co. 583 Foundry Lakey Croee v. plaintiff’s Accordingly, urges defendant that fares. pre-existing from a diseased con results aggravated by happening a nonf ortuitous and dition that holding of it under the this Court is, therefore, Hagopian Highland City Park, Mich. noncompensable. contrary, . on the testified that doctor, Plaintiff’s X-ray pictures compression' disclose fracture of spine; weight lifting, that this could result from body being particularly turned while the to one upon pic- his examination of the side; that, based knowledge plaintiff and and his of the tures his- tory opinion plaintiff’s it was his case, resulting disability plain- due to were 150-pound lifting swinging box tiff’s it to setting side as he was one down. *3 department plaintiff’s disability that found aggravation pre-existing
did arise from an aof directly lifting but stemmed condition, from the 150- February pound supported on 5th. In box this it is testimony plaintiff’s by the doctor. We do not department’s findings disturb fact which are supported by competent evidence.* consequence,
In there remains for consideration question of whether a resulting from which аrose out of and in the employment, course of after the effective date of compensable No. 245, Act Pub. Acts 1943, 2 of the workmen’s act when such was .not occasioned an accident or fortui tous event. question duly
This was considered and answered opinion an the affirmative in written Mr. Jus tice Anderson Corp., v. General Motors Bushnell 2 Comp. 1929, 8451, See Laws as amended Act No. Pub. 1943 (Comp. Supp. Acts 8451, Stat. Ann. 1947 Cum. Supp. §17.186).—Reporter . Michigan Reports. signed by members this three
313 Mich. approved by three additional mem- Court opinion signed concurring of Mr. Jus- bers predicated on concurrence was tice North, grounds an affirmative answer different than no question. this
Subsequently,
of a
the continued adherence
ma
jority
majority
An
to the
view the
of this Court
brought
question
into
has been
Kas
derson Case
arewski v.
Hupp
Corp.,
Motor Car
Defendant Highland Hagopian City opinion in Butzel’s supra, indicating that it was therein held that Park, remove the 1943 amendment element did not prerequisite event as a to the accident or fortuitous disability resulting per right to recover for opinion injury. It noted that sonal this should signed by four members of with Court, was but concurring a fifth in the result. Furthermore, precise question must before Court case as a matter found, in mind. was of fact, be borne that plaintiff’s aggravation was on claim based majority holding pre-existing disease. The of a opinion epitomized in Justice Butzel’s as fol well lows :
" act itself not intended The amended to cover *4 aggravation pre-existing without an acci disease ’’ dent or fortuitous event. by opinion quoting from concludes the following: amendment " public 'Ordinary of life to which the diseases employment exposed generally outside of the shall ” compensable.’
not be Lakey Foundry Co. & Croee v. Machine The observation that, follows with the inclusion of language, hardly this it can be said that the 1943 an award in a amendment the act allow broadens aggravation pre-existing of a .case disease without Hagopian an accident fortuitous event. That the оr clearly than Case no more stated, decides justices composed majority, three of the five its concurring opinion Mr. written Justice in the Anderson Case. North Hagopian ap- no But the decision Case has plication, explained North's.concurring as in Justice opinion involving Case, in the Anderson in'instances solely which is due or a nonaccidental put injury arising nonfortuitous of and in employment, as the course of in the instant case. opinion Hagopian
Mr. Justice Bushnell’s Case directs attention to the number of instances which the words “accident” and “accidental” were eliminated from act the 1943amendment and “injury” term substituted for the terms “acci injury.” opinion dent” and “accidental His in the points Anderson advertently out that this was not Case done'in merely purpose or for the of substi tuting equal application a term which would have accidental disease, but response rather that the acted in to a specific committee recommendation to abolish the requirement that an must be аccidental to disability compensable. make a resultant For these opinions, and other reasons advanced these two repeated persuaded which I am here, need.not legislative enacting that it intent, the 1943 resulting per from amendment, disabilities injuries (as distinguished sonal re disabilities sulting aggravation pre-existing from disease condition) out of and in the arise course of compensable, should thereafter be even *5 Michigan Reports.
586 320 though not occasioned accident or fortuitous event. depаrtment granting plaintiff award
compensation, therefore, affirmed, with costs plaintiff. J., C. JJ., Reid
Bushnell, and North, con- J. curred with Dethmers, (for reversal). J. Part 2, of Act §1, Butzel, (1st Sess.)/the
No. original 10, Acts Pub. 1912 Ex. compensation enactment of the workmen’s act, read as far as follows so material to this case: ** * employee personal “If an receives a injury arising employ out and in the course of his ** compensation.” paid he ment, shall be § Comp. (Stat. 17.151). 1929, Laws Ann. provision (by This has been amended once 1943) Act No. Pub: Acts and it now reads as follows: employee, “An receives arising employment, out of and of his course
* * * paid compensation." Comp. shall be Supp. Supp. Stat. Ann. 1947 Cum. § 17.151. change It obvious no substantial has been provision during years made in this the work- compensation men’s act has been effect in this key State. This section contains the whole being gives employee right one which paid compensation, and it is the ultimate basis of all cases decided the act.
Prom the outset held that Court has the above provision payment quoted does authorize personal injuries for all suffered injuries employee, only. but for accidental Lakey Foundry Co. 587 & Machine Croee v. *6 Works, Adams v. Lead 182 Acme White & Color (L. Mich. 157 R. A. 6 A. 283, 482, 1916 N. C. C. A, 689), Ann. Cas. 1916 in which we held that this D, by that the of was dictated the fact title the act was ‘‘ significant describing provide it as one to com pensation for the accidental to or death of ’’ employees. original under the Thus,, ac personal injuries arising cidental out of and in the employment compensable, Occupa of course were by tional diseases and other disabilities caused compensable. not were Compensation occupational pro- for was diseases by “occupational vided the so-called diseáse (Comp. amendment,” Act No. 61, Pub. Acts 1937 § Supp. seq., Laws 8485-1 et 1940, Ann. Stat. 1947 Supp. seq.). Cum. 17.220 et amendment This con- specific a tained pensation schedule of diseases for which com- payable was to if was disease con- specified. tracted the manner therein For example, compensable siliсosis made was when pneumoconiosis mining, was caused and was made compensable by quarrying, was when it caused cut- ting, crushing, grinding polishing or of metal. held in
was Sutter v. & Kalamazoo Stove Furnace foundry 297 Mich. Co., 226, that a molder pneumoconiosis silicosis contracted and was en- engaged titled because he was not quarrying, cutting, crushing, mining grind- or ing, polishing of metal. or impossibility providing a schedule of dis- enough occupational
eases broad to include all dis- which, compensable apparent, eases should be became Act No. Pub. Acts and 1943, from the schedule the act and substituted
struck provision general which cover- therefor furnishes age of all diseases and disabilities. “per- accomplished defining the term
This [Apr.' Reports. Michigan (c) injury” in section follows as sonal the act: injury’ ‘personal a dis- include shall term “The disability causes condi- is due to or ease peculiar are characteristic tions which business employer out of and arise and which Comp. employment.” in the course Supp. Supp. Ann. 1947 Cum. 8485-1; Stat. § 17.220. § 2) immediately (part following
The section employee result- of an provides disablement that the treated as shall be ing such disease happening the mean- within of a *7 ing of the act. “.personal of the term the definition
This is obviously injury” It is not an in the act. contained merely It states that the definition. all-inclusive or disabilities which include” diseases term “shall are char- to and conditions which “due causes are employer’s peculiar to” the busi- of and acteristic and the course of em- which arise out of and ness, ployment. way any not This definition does previously meaning had which been at- affect the- “personal injury” as used in the term tached to gives § merely part act. term an the the 2, 1, qualify-for meaning. compen- to Thus, additional sation a claimant must establish either that benefits, injury arising an accidental has out of he sustained employment, in which and the course his event directly claiming under or 2, 1, that he he disease aii which is due has and conditions which are characteristic of to causes employer peculiar to the business the and and еmploy- and in the out of course which arose claiming he is in which latter case ment, opinion Mr. Dethmers’ of the act. Justice would compensation to a claimant who has es- award Lakey Foundry Machine Co. Croee.v. & tablished either of these propositions. He has taken that position Act No. 245, Pub. Acts so changed the workmen’s act that it is no longer necessary that an be caused accident or fortuitous event for it to be compensable under part 2, of the act. He states that he is such persuaded was the legislative A intent. careful and reading analysis amendment does not leave me with the same im pression.
Important were made in changes the act by the amendment addition to the broadening to coverage as occupational diseases already pointed out. The form of the act was changed from that of an “elective” act that of a “compulsory” and employer’s employee’s to “elect” right bound the act taken being away. Also, mаximum minimum amounts of benefits pay- able were generally increased, the provision requires furnish employer medical, surgical hospital to an injured .and service employee as to changed so require such services be for a provided than longer period previously. Sev- eral alterations were made in procedural pro- visions of the act" and in provisions touching the administration of the act. upon Numerous were changes phraseology necessary accomplish *8 thеse but none of them modifications, affect the in- case. stant Brother My points out that in a number of in- ‘‘ ’ ‘‘ ’ ’’
stances the words accident and accidental were from the act the eliminated 1943 amendment and substituted “injury” the term therefor. This indi- him. that the to intended to legislature cates change 2 of act to coverage part nonacci- include injuries well as accidental personal dental as arising and in course of the employment. That is out Michigan Reports.' my interpretation change phrаseology. of the example, part change made,
Such § prior to 1943: read as follows 10, which ** any employer with “Where contracts * * * any pprson, subject other who is not subject this act and who does not become prior for which 1929, 8416, to this act to the date of the or death accidental Comp. claim is made,” cetera, et Laws § § Stat. Ann. 17.150. The italicized word “accidental” was stricken my the amendment. out belief word was stricken out because of the amendments previously made 7 of the act discussed. In meaning “personal to the addition the term injury” had been construed have in connection with its use in 1, meaning act, the ‘‘ assigned the additional that it shall include” or diseases disabilities due to causes and peculiar which are conditions characteristic of and employer to the business of the- and which arise out employment. of and in the course Such dis- originate abilities need not diseases from an acci- appropriate legis- dental cause. it was Thus, for lature to eliminate the word “accidental” in intending “injury” section, above that the word as given used therein should be the same broad mean- ing “personal injury.” as the term by adding
Part following 1, was amended sentence to it: injury’ injury’ “The term ‘time of or ‘date of as
used in this act shall the case of a disease or in the case of an single not attributable to a day event be the last work employee subjected which the was last to the condi resulting tions Comp. or death.” gupp. 1945, Supp. § 17.151. Stat. § 8417; Ann. 1947 Cum. *9 Lakey Foundry Ceoee & Machine Co. intention It contended that if was the lеgislature compensate personal injury to due single if was an accidental to event such event undoubtedly then the word “accident” occurrence, ‘‘single rather than the have been used term would ’’ appeal reasoning An Such does not to me. event. “ ’’ injury single event, to a i. acci- e., attributable clearly compensable dental or fortuitous event, under the construction which the court has hereto- upon placed the workmen’s fore act. necessity legislature no for the
There was add to quoted compensation' to act sentence so far as injuries coverage for accidental concerned. The was quoted meaning sentence refers to the broadened assigned “personal which has been to term in- part jury” occupational 7 of e., i. dis- and disabilities due to eases causes conditions peculiar are characteristic em- to the quoted ployer part ’s business. The sentence from supra, means that the date of of an disability сompen- disease or which is day 7 of the act shall sable be the last employee in the work which the was subjected last to the conditions which resulted or death. use of the word “condi- significant. my opinion, tions” is conditions which refers, ‘* peculiar are characteristic of and employer’s to” business.
In sections and 15 of 7, 11, 12 2, the word “in jury” was for the substituted words “accident” and places. “accidental” several Thus, section ‘ ‘ changed phraseology from Questions to as * * dependents constitute shall de- termined as the date of the accident to the em- ployee” “shall be determined as the date of the ’’ employee. to the This does indicate me that the intended to make nonacci- *10 Michigan 320 Reports. 592 injuries compensable part personal 2 dental under act. the act is read as it stood When before and after the 1943 it is evident that amendment, legislature intended make substantive changes, hereinbefore but also to revise discussed, provisions up and edit the act that its so -make an integrated complete whole. The act must be entirety, provi- read and construed in its and each relationship sion must be deemed to have a to the incomplete parts others. Part 7 unless the other conjunction by of the act are read in with it, and, changing phraseology provisions in the cited, legislature firmly part more united to7 the rest act. significant that where the in tended to make a substantial modification of the act, expressed it specific its intent the use of and def language. provision pointed inite No can be legislature, by language, expressed where the such change intent its to make the advocated the in stant case. Corp., case of Anderson v. General Motors authority
313 Mich. is doubtful for the stand especially which Mr. Justice Dethmers has taken, light Hagopian City when Highland is read in the v. day. Park, 313 Mich. decided the same Subsequently, again presented the issue was to this Goodyear Court Samels v. Tire & Co., Rubber my opinion, Mich. that 149, and, case settled the compensation law. there an We affirmed award of epicondylitis, a claimant an in suffered region flamation of the muscles in the joint, of the elbow attributable seven months of strenuous justices as a tire work builder. Three based their ground affirmance of award on that the claim ant was disabled disease or dis ability compensable part which was under 7 of the Lakey Foundry Croee & Co. 593 Machine justices act. Three ground concurred affirmance on the plaintiff that had in- sustained a jury compensable which was under of the аct. justices dissented from affirmance on tbe
Two. ground finding that had there been no of fact department industry of labor and that'claimant was entitled.to an award of held the cause should have been department finding.
remanded to the for’such a Con- opinion opin- dissenting sideration with the justices ions of the first that a three will show *11 majority agreed of the Court were that, be com- pensable part personal injury under 2 must result from an accidental or fortuitous event arising employment. of and in out the cоurse of the pointed Hagopian Case,
It should be out that the supra, has never been on the con overruled, but, trary, Riley its in rule has been followed v. Kohlen berg, Department 316 Mich. Poindexter v. 144, Conservation, 316 Mich. O’Neil v. W. R. 235, Spencer Co., Grocer 316 Mich. v. Cromie 320, Florez, Inc., 317 Mich. 516. In latter case, compensation entire Court concurred in denial of the on ground that: “Upon the record in this case, cannot be said proved
that the claimant has that deceased sustained injury arising an accidental оut of and the course employment.” of his Mooney Copper Range In Co., Railroad 318 aggravation pre- Mich. held that 120, we of a existing by diseased condition accidental means was compensable. Such decision does not conflict with Eagopian aggrava- Case, which we held that pre-existing tion of a diseased condition nonacci- compensable. not dental means is This decision was directly provision part made the face of the Michigan Reports. 320
594 §1 “ordinary (o) of lifе act that diseases * * * (Comp. compensable.” shall he Supp. Supp. Ann. 1947 Cum. 1945, 8485-1; Stat. holding logical 17.220.) reason There is no compensable ordinary under is that an disease of life aggravated part 2 or accelerated of the act when in the course of em an accident or fortuitous event ployment hold that a if we are to compensable origin accidental need not be theory upon which thereunder. Mooney was that accidental in the Case
was awarded personal injuries compensable part 2 of are under part provisions regard the act without necessary longer hold that it no the act. that a compensable If we is personal injury origin to be be of accidental part logically, must we then,
under interpre § (e) give quoted an clause recovery preclude all circum under which will tation. suffering is where the claimant stances ordinary of life. disease applies reasoning in which we to cases
The same aggra pre-existing that a hernia have held in the fortuitous event vated an accidental or compensable course of *12 though provides 1 the act of the act even “clearly origin (c), recent that a hernia must be compen from a order to be and-result strain” Corp., Hupp v. Motor Car sable. See Kasarewski question is discussed. Mich. in which this my interpretation workmen’s If Brother’s of the respect, compensation in that the then, act is correct, plainly title act unconstitutional its is is in.that interpre- sufficiently encompаss such an to broad original act read as of the follows: tation. The title * * * compensation providing for “An act employees.” death of to or the accidental 1948] Croee Lakey Foundry & Machine Co.
This title has once, been amended Act occupa No. 61,Pub. Acts which act embraces the absolutely tional disease amendment. It was neces sary that the title amended to make broad enough cover this amendment. to This was done adding the italicized words to the title as it existed before: * * * providing “An act for compensation resulting occupational
the injuries or death or or disease accidental to death ’’ employees. legislature It is not claimed that the intended to broaden the act, as now it thus contended, when purpose amended the title in 1937. The of the change merely enough in title was to make it broad to cover disease amendment. In my opinion, change made was not sufficient permit interpret this Court to the statute as advo- by my cated Brother. quite significant
It is that in 1947bills were intro legislature duced in the State amend the act and provide compensation the personal injuries arising title for nonaccidental and
out of in the course employment.* favorably None of bills these were upon by legislature. acted It is not within province usurp of this Court functions by judicial the act or its amend title interpretation express the absence clear and language interpretation. which dictates such an
In the instant case, commission department industry of labor and held that suffering process claimant from a destructive pf spine, question, the cause which is and that ordinary the claimant not afflicted with an disease introduced See example the 1947 session of the House Bill No. legislature. Senate Bill No. 251 *13 Michigan Reports. They di- stemmed
of life. held that rectly plaintiff a 150- from an lifted incident when immediately pound foundry felt a box cores and sharp They pain in his back. awarded According plaintiff’s 2 of the act. to under years pre- testimony, had had he back trouble two viously. Although go light he made df he did to it, department, light some treat- first-aid received applied a liniment to his back which and ments, doctor pain prescribed him. for He said that the al- off and that he lo'st no time from work, wore though getting he found himself tired at times. He heavy asked decided the work too and him, job assigned several times to be taken off and lighter The com- work. This was done. never mission did find that the claimant disabled spine. deter- his It is not our function to mine or not the is e., to the whether attributable performing, heavy had been i. whether work he lifting requirеd do claimant was over period occupational disability long of time caused an which is due causes and which áre conditions peculiar employer’s busi- characteristic of to the and ness. set but the case should aside, award should be industry department labor and to the remanded plaintiff suffered an or not whether
to determine occupational disability 7 of the findings. with its accordance an award in to make appeal. on this No should be allowed costs with JJ., concurred Sharpe, Carr, Boyles, J. Butzel,