Chaudier v. Stearns & Culver Lumber Co.

BROOKE, J. (after stating the facts). The facts upon which the industrial accident board based its conclusion that claimant’s decedent died from the effects of an accidental, personal injury arising out of and in the course of his employment are extremely meager. They m^,y be briefly summarized as follows: (1) During the 23 hours preceding his death decedent had been engaged at intervals in cleaning out wood ashes from the burner. (2) At 6:30 in the evening he was found by claimant lying upon his bed fully clothed in a comatose condition which continued until 6 o’clock the next morning with the exception of about an hour at midnight when he walked about the room being apparently in great distress. (3) The physician called to attend him at 6:30 in the morning with the aid of a stomach pump removed from the stomach of the decedent a large quantity of alkaline liquid and about a teacupful of wood ashes. (4) Decedent died from alkaline poisoning attributable to the presence in the stomach of lye and ashes. The following conclusions would seem to- be warranted by the record: Plaintiff’s decedent did not die as the result of an occupational disease; in other words, the lye and ashes found in his stomach did not get there through the performance of his work in the ordinary way. This fact seems to be made clear by the testimony of the witness, Sterk, who himself had removed the ashes from the burner at least 25 times. It is likewise to be noted that the work was done but once each week so that the deleterious effect of the [441] ashes taken into the stomach in the ordinary course of the employment, if any, could scarcely be said to be cumulative from period to period. There is no evidence tending to show that on the night in question plaintiffs decedent had with him a pail of water into which large quantities of ashes might have fallen in the course of the work. There is no evidence that decedent drank from a pail of water heavily impregnated with ashes. There is evidence of the physician to the effect that the liquid taken from the man’s stomach would be: “A little burning,” that: “It would burn and taste nasty,” and that: “To swallow something that hasn’t a pleasant taste involves an effort of the will.” Counsel for claimant assert that the foregoing facts are sufficient to support the inference indulged in by the board to the effect that decedent swallowed the ashes and alkaline liquid accidentally. They point out that, it being undisputed the lye and ashes were in the stomach and caused his death, the only possible inferences are: (1) That they were taken into the stomach by the decedent accidentally, or (2) That they were so taken wilfully and with suicidal intent and they rest upon the presumption against suicide, citing Wishcaless v. Hammond, Standish & Co., 201 Mich. 192. This position is met by counsel for appellant with the argument that the presumption arises only where the facts and the logical deductions therefrom point with equal cogency to suicide or accidental death and that in the case at bar the accidental theory is negatived by the testimony of the doctor that the substance found in the stomach of the decedent could not have been taken by decedent without a conscious effort because of its unpleasant taste. The rule to be adopted by the board is set out clearly in the case of Ginsberg [442] v. Adding Machine Co., 204 Mich. 180, in the following language: “It is the province of the board to draw the legitimate inferences from the established facts and to weigh the probabilities from such established facts. Wilson v. Phœnix Furniture Co., 201 Mich. 531. But the inferences drawn must be from established facts; inference may not be built upon inference, possibilities upon possibilities, or inferences drawn contrary to the established facts, contrary to the undisputed evidence. 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” — citing many cases. Applying that rule to the facts in the case at bar and in further consideration of the rule which places the burden of establishing the claim for compensation on those seeking the.award, we are constrained to the view that the inference that the liquid and ashes found in decedent’s stomach and which caused his death were taken into the system by the decedent with suicidal intent, is at least as reasonable as that they found entrance to the stomach accidentally, and where two inferences equally consistent with the facts arise out of established facts, one involving liability on the part of the employer under the act and the other relieving him from liability, the applicant must fail. The award must be vacated. Ostrander, Steere, Fellows, and Stone, JJ., concurred with Brooke, J.