Poindexter v. Department of Conservation
25 N.W.2d 182
Mich.
1946
Check Treatment
Butzel, O. J.

For 18 years prior to December 3, 1944, the date of his death, Oscar F. Poindexter was employed by the Michigan department of conservation, defendant in proceedings to recover workmen’s compensation, brought by decedent’s dependent widow and children, Defendant has brought an appeal in the nature of certiorari from an award in favor of plaintiffs. At the time of his death, decedent was in charge of the water resources branch of the geology division of defendant. He frequently made physical examinations, tabulations and meas *237 urements of water levels and occasionally testified in court proceedings concerning that subject on wbicb be was an expert. In 1943 be appeared only twice in such proceedings, but in 1944, be made 13 •appearances. Attendance at them was accepted by Mm as one of the duties incident tb Ms work, and defendant compensated Mm for the time so. spent.

Prior to November 29, 1944, decedent’s general health appeared to be fair. He suffered from a catarrhal condition and dyspepsia but had lost no time on that account. He was examined by his physician in February and March of 1944, without any observation of heart disease symptoms.

Proceedings had been instituted in the circuit court for the county of Eaton by the board of supervisors of that county and the Michigan department of conservation to establish the water level of Narrow lake. Decedent was thoroughly familiar with the problem. He had measured the water level at various intervals, prepared a hydrographic chart and acquainted himself with the topographic features of the lake area. On November 29, 1944, he appeared in the circuit court, Charlotte, Michigan, to give testimony regarding these matters. His entire testimony is contained in 11 pages of the printed record. He was on the stand approximately 40 minutes. He was questioned on direct examination by the prosecuting attorney for Eaton county and had answered but four simple questions on cross-examination when’ the court took the usual noon recess. He remained in the court room a brief time and then proceeded to the corridor where, with two of his colleagues, he descended the stairs, crossed the lobby and was just about to step down from the first step to the street level outside the court house when he said he was sick. His com- *238 pardons noted that he was pallid and that beads of perspiration appeared on his hands. He was taken into the register of deeds ’ office where he was placed on a cot. A physician was summoned and administered something to ease his pain. Later in the day he was taken to his home in Lansing, Michigan, and his family physician was called. Upon the latter’s orders, he was moved to a hospital and placed under an oxygen tent. He died on December 3,1944. His illness was diagnosed as coronary thrombosis or coronary occlusion, and was so certified by his doctor on the death certificate.

A hearing on the application for compensation was held before a deputy commissioner who, as indicated by the record, made no- separate findings of fact as to the alleged disability or injury except to state in the award that decedent on November 29, 1944, received a personal injury arising out of and in the course of his employment. Appellant claims that this is a conclusion, not a finding of fact; that the department’s oiily real finding on review was that the deputy commissioner was in the best position to evaluate the conflicting testimony relative to the effect that decedent’s court appearance had upon him. Appellant contends that under such circumstances and in accordance with Goines v. Kelsey Hayes Wheel Co., 294 Mich. 156, we may examine the testimony to_ determine whether there is any competent evidence to support the award. We may do this at all times when the claim is made that there is no competent evidence to support the award.

Decedent was a capable and conscientious man well qualified for his work by scholastic training,. ability and long years of experience. He was of an *239 intense and nervous temperament and regarded bis work seriously. He was a busy man and had returned just tbe preceding evening from a mission to Benton Harbor on State business. He stopped at Narrow lake tbe morning of tbe day on which be testified. He knew bis subject matter and was well fortified with charts and maps. Although be- was appearing in court much more • frequently in 1944 than in tbe previous year, there was nothing unusual or overstrenuous in this assignment. He was acting in tbe regular and normal course of bis duties. There was nothing accidental, fortuitous or. even unusual in what occurred in tbe court room. It was claimed that be. was under a mental strain while testifying. This is not uncommon with expert or other witnesses. In its opinion tbe department cites two questions asked of the decedent which it is claimed contributed to his discomfiture. To one of them his answer was: “I would not be prepared to testify on that;” to the other he answered: “I coulcln’t say about that.” Such answers are a poor index of mental strain.

There is no question but that decedent was ill when he took the witness stand. His hands shook when he rested them on the stenographer’s table while testifying from charts and maps. Moreover, in the expert testimony on behalf of plaintiff, it is admitted that coronary thrombosis or occlusion is preceded by untoward conditions. Plaintiffs’ experts were not in full accord, ^ome said the disease began with arteriosclerosis. It was stated that when this condition has reached a certain stage of development;, the thrombosis or occlusion occurs. A large percentage of persons afflicted with the disease have died in their sleep. One of the medical experts for plaintiffs stated that this type of heart seizure occurs frequently after some excitement, that merely *240 listening to a broadcast of a ball game had been known to induce a coronary occlusion. It is a matter of common knowledge that heart disease causes more mortality than any other affliction, and that coronary thrombosis or occlusion is one of its most frequent forms.

Plaintiffs rely on LaVeck v. Parke Davis S Co., 190 Mich. 604 (L. R. A. 1916 D, 1277), where the employee suffered a cerebral hemorrhage and subsequent partial paralysis as the result of working long hours in an exceedingly hot laboratory. There something unusual and fortuitous was shown. In Monk v. Charcoal Iron Company of America, 246 Mich. 193, also relied upon by plaintiffs, the employee succumbed to a heart seizure brought on by’ excitement and over exertion resulting from his attempts to pull the fire from under a boiler after a steam pipe had been broken. Then again in Schroetke v. Jackson-Church Co., 193 Mich. 616 (L. R. A. 1917 D, 64), the employee was affected by overexertion and excitement attendant on an accidental fire, and this Court held that this was something fortuitous and unexpected. There was nothing of that nature in the instant case. Decedent die! from an ordinary disease of life. As we have often stated, the compensation act is neither a health nor life insurance plan. Plaintiffs try to distinguish the instant case from the very recent one of Hagopian v. City of Highland Park, 313 Mich. 608, on the ground that in the latter case plaintiff knew he had a heart condition when he attempted to perform his regular work. The instant case in which no physical strain was shown is far stronger for the rule stated in the Hagopian Case. Decedent was doing exactly what he was employed to *do. There was no trauma or fortuitous event, nor anything even of a dangerous or grave nature. He was suffering from *241 ail ordinary disease of life to which the public is generally exposed when he suddenly succumbed. We need not repeat what we stated so recently in Hagopian v. City of Highland Park, supra.

The award is vacated, with costs to defendant.

Carr, Bushnell, Sharpe, Boyles, Reid, North, and Dethmers, JJ., concurred.