Trumble v. Michigan State Police , 325 Mich. 237 ( 1949 )

Plaintiff fails to establish that his disablement arose outof his employment. For that reason I do not concur in affirming the award.

Plaintiff was employed as a janitor at the State Police post in East Lansing. On October 3, 1947, at 4 o'clock in the morning he started his work as usual. His work was "to clean and dust and mop, clean the toilets, such as that — clean up the place generally." He testified that nothing "out of the way" happened to his eye after he went to work:

"A. Yes. I was all right. I didn't notice anything out of the way, and I don't know, about 6:30 or 7 o'clock, I noticed my eye beginning to bother me. * * *

"A. So I kind of touched it up that day, and rubbed it, maybe, a little bit, and the next day I came to work and I saw a fellow out in the outside, and he says, `What's the matter with your eyes?'"

He continued to work until October 6th. His eye "kind of smarted," and grew worse. His work had been "to pick up the papers, and such as that," then he went around to sweep and dust, then "to clean the drinking fountains and the toilets, and such as that." There was no testimony that in cleaning the toilets he used any acid or caustic or other material which should be kept away from contact with the eyes. When asked about cleaning toilets, he testified:

"Q. Had you done any toilet cleaning that morning?

"A. Oh, yes, we have three —

"Q. I mean, had you done it before this started bothering your eye?

"A. Well, I don't think that morning, before I noticed it bothering me."

There is no question but that plaintiff first noticed that something was wrong with his eye, during the course of his employment. There is an utter absence of any proof that the "very bad ulcer" on the cornea of his eye arose out of his employment. His witness, the ophthalmologist who was allowed $243 by the award for medical fees, testified in substance that if plaintiff had gotten something into his eye, that might have caused the ulcer. But there was no testimony that any foreign substance had gotten into plaintiff's eye while he was at work. In fact, plaintiff's own testimony is to the contrary. Plaintiff himself, when asked repeatedly whether anything "splashed" into his eye, whether any particular thing "happened" to his eye, would only say that "it just started to smart that morning," and when squarely asked whether he was sure he got anything in his eye, he said "Well, I don't know what happened to it." Furthermore, the building superintendent testified that on the morning of October 3d plaintiff approached him and asked him to look in plaintiff's eye, that he lifted the lid, looked in the eye, and "was unable to detect anything in the eye." The ophthalmologist, who was plaintiff's witness, testified that "any injury to the eye might cause an ulcer," and that it might possibly come from a systemic condition.

An applicant for compensation must in some manner, beyond mere speculation, establish that his disablement arose out of his employment. Merely to show that it was discovered while in the course of his employment is not sufficient. This is fully supported by the cases from which Mr. Justice NORTH quotes as follows:

"The burden of establishing a claim for compensation rests on those seeking the award. * * * If an inference favorable to the applicant can only be arrived at by conjecture or speculation the applicant may not recover. So if there are two or more inferences equally consistent with the facts, arising out of the established facts, the applicant must fail." Ginsberg v. Burroughs AddingMachine Co., 204 Mich. 130, 137.

"The burden of furnishing evidence from which the inference can be legitimately drawn that the injury arose `out of and in the course of his employment' rests upon the claimant." McCoy v.Michigan Screw Co., 180 Mich. 454 (LRA1916A, 323, 5 NCCA 455).

"In awarding compensation to a plaintiff, the department^* may not indulge in the assumption of a mere possibility in the nature of a guess as to whether plaintiff is entitled to compensation. Ginsberg v. Burroughs Adding Machine Co.,204 Mich. 130, 137; Marman v. Detroit Edison Co., 268 Mich. 166."Riley v. Kohlenberg, 316 Mich. 144.

Beginning with the enactment of the present workmen's compensation law in 1912, it has been consistently held that an injury, to be compensable, must "arise out of" as well as "in the course of" the employment. That was required by section 1 of part 2 of the act as originally passed in 1912. The same requirement remains unchanged through many subsequent amendments to the law.^**

In Rayner v. Sligh Furniture Co., 180 Mich. 168 (LRA1916A 22, Ann Cas 1916A 386, 4 NCCA 851), concerning an accident which occurred about 2 months after the effective date of the act in 1912, this Court said:

"The words `out of and in the course of the employment' are used conjunctively, not disjunctively; and upon ordinary principles of construction are not to be read as meaning `out of,' that is to say, `in the course of.' The former words must mean something different from the latter words. The workman must satisfy both the one and the other. The words `out of' point, I think, to the origin or cause of the accident; the words `in the course of' to the time, place, and circumstances under which the accident takes place."

In Hills v. Blair, 182 Mich. 20 (7 NCCA 409), discussing an accidental death which occurred about 10 weeks after the effective date of the act, the Court said:

"Under the provisions of this act, only that employee is entitled to compensation who `receives personal injuries arising out of and in the course of his employment.' It is to be borne in mind that the act does not provide insurance for the employed workman to compensate any other kind of accident or injury which may befall him. The language of the Michigan compensation law is adopted from the English and Scotch acts on the same subject, and, in harmony with their interpretations, has been construed by this Court, in Rayner v. Sligh Furniture Co., 180 Mich. 168 (LRA1916A 22, Ann Cas 1916A 386, 4 NCCA 851), as meaning that the words `out of' refer to the origin, or cause of the accident, and the words `in the course of' to the time, place, and circumstances under which it occurred."

In Hopkins v. Michigan Sugar Co., 184 Mich. 87 (LRA1916A 310), the Court (syllabus) held:

"To justify an award of compensation to an injured employee the accident must have arisen out of as well as in the course of his employment; the two are separate questions to be determined by different tests: `Out of' points to the cause or source of the accident, while `in the course of' relates to time, place, and circumstance."

The above statements have been repeated, in various ways, in many subsequent decisions of this Court. Recently Mr. Justice BUSHNELL, writing for the Court in Appleford v. Kimmel,297 Mich. 8, quoted with approval as follows:

"It is well settled that, to justify an award, the accident must have arisen `out of' as well as `in the course of' the employment, and the two are separate questions to be determined by different tests, for cases often arise where both requirements are not satisfied. An employee may suffer an accident while engaged at his work or in the course of his employment which in no sense is attributable to the nature of or risks involved in such employment, and therefore cannot be said to arise out of it. An accident arising out of an employment almost necessarily occurs in the course of it, but the converse does not follow. 1 Bradbury on Workmen's Compensation, p 398. `Out of' points to the cause or source of the accident, while `in the course of' relates to time, place, and circumstances. Fitzgerald v. Clarke Son, 2 KB (1908) 796.

In Simpson v. Lee Cady, 294 Mich. 460, Mr. Justice BUTZEL, writing for the Court, said:

"The compensation law is to be construed liberally to provide indemnity for accidents peculiarly incidental to employment, but it was not intended to be health, accident and old age insurance and spread general protection over risks common to all and not arising out of and in the course of employment."

To uphold the award in this case, we must find in the record some evidence that the ulcer on the cornea of plaintiff's eye was caused by some foreign substance that got into the eye after 4 a.m. and before 6:30 or 7 a.m., on the morning of October 3, 1947, while plaintiff was at work for the defendant State Police. To establish his right to compensation, plaintiff must show something more than the mere fact of his employment during that time as a janitor and the discovery, during the course of his employment, that something was wrong with his eye, and 3 days later that an ulcer developed on the cornea of one of his eyes.

The case is remanded for entry of an order denying compensation.

SHARPE, C.J., and DETHMERS, BUTZEL, and CARR, JJ., concurred with BOYLES, J.

^* The powers and duties of the department of labor and industry, here referred to, are now vested in the workmen's compensation commission, see CL 1948, § 408.6 (Stat Ann 1947 Cum Supp § 17.6[6]). — REPORTER.

^** PA 1912 (1st Ex Sess), No 10, pt 2, § 1, effective September 1, 1912, as amended (CL 1948, § 412.1 [Stat Ann 1947 Cum Supp § 17.151]).