Fritz v. Rudy Furnace Co.

Clark, J. On January 29, 1920, plaintiff, a laborer in a foundry, was assisting in pouring molten iron from a bull ladle, which when filled weighed about 800 pounds. From opposite sides of the ladle a bar four or five feet in length projected, which at each end was divided into two handles between which a man stood when pouring, the ladle being supported by a bench. Plaintiff and a fellow workman had poured part of the metal,— “A. When she slipped and gave me that wrench. “Q. What slipped? “A. Why, that bull ladle. “Q. What did it slip in? — 326 — "A. On the benches it was setting on. It got caught and I went to pull on it and it came back. She slipped and wrenched me. * * * “A. I don’t know where it slipped, but it slipped. When I was turning it, when I wanted to come back on it, it slipped. “Q. It slipped as you were coming back? “A. When she went down, when I took her down. “Q. On which side? “A. On the left side. Then when I started her back, she didn’t come and I gave a strain om it and she slipped and she came back with force and just twisted me that way and I held on with one hand and pushed dewn with the other. “Q. Which hand did you push down with? “A. I pushed down with this hand. If I had let it go back it would have burned the other men; I held with this hand and pushed with the other; it wrenched me when' it slipped. * * * “A. When I came back and I went to pour on the right hand side and when I put my felt on the right hand side it hurt me and I said I am getting sick to my stomach. * * * In the meantime Burt took the ladle and I started away and that was the last I knew until I came to in the hospital.” Another witness said that plaintiff received a jerk— a hard jerk. Plaintiff testified that when he was so jerked or wrenched he felt a pain in the region of the appenidix, and that he had suffered no similar pain before and he also claims some persistence of the pain in his side following the accident. The employer called a physician whose opinion was that plaintiff had been overcome by the heat of the foundry room, and he was treated accordingly at the hospital where he'remained nine days. The physician testified that while at the hospital plaintiff suffered a mild attack of influenza, but this plaintiff’s testimony tends to deny. On February 13, 1920, another physician found plaintiff suffering from appendicitis for which he was treated and. later operated May 4, 1920. There was — 327 — testimony that the appendicitis was chronic, there being hard and extensive adhesions, and that plaintiff might have been so afflicted at the time of the accident. Connecting the appendicitis with what befell plaintiff at the foundry, physicians testified: “I would say with the accident he would be more apt to have it. Receiving an injury of that kind would lower resistance and would be a factor. * * * “Yes, sir. I think it would be impossible in a case of the kind to eliminate the blow if he got a strain. * * * “I am not speaking about this man particularly, this particular case, but cases in general. If a man received an injury such as a strain or blow on the side I think it would be a predisposing factor. * * '* “Just so far as is due to infection this accident may have been a factor in lowering the resistance so that this infection would become active. I can’t say that the appendicitis was caused by the accident and I cannot say it was not. I think it was probably a predisposing cause. * * * “Q. This man had chronic appendicitis? “A. I would say so, yes, sir. “Q. That might have extended over a period of years on January 29, 1920? “A. It might have extended beyond that point, but in eliciting his history very carefully he repeatedly told me he had no trouble with the appendix previous to the injury. “Q. And on that history you base your opinion that the injury caused the appendicitis? “A. Considering his statement as we always consider the statement of a patient, it would be reasonable to conclude that was it.” There was medical testimony that appendicitis might be caused by influenza, but the board found, in effect, that plaintiff had not suffered an attack of influenza, as claimed. There was report of an accident, and after notice and application for adjustment of claim, plaintiff sent the board the following letter: — 328 — “Dowagiac, Mich., “June 8, 1920. “Mr. Fred H. Johnson, Sec’y., “Industrial Accident Fund, “Lansing, Michigan. “My dear Mr. Johnson: I have this date sent you a telegram as follows: ‘Cancel hearing on my claim against Rudy Furnace Company and State Accident Fund —they haye settled — letter follows.’ “In explanation I want to advise that the writer does not consider himself able to attend the hearing on account of his own condition, and the State Accident Fund tlarough the Rudy Furnace Company have settled the case in a manner satisfactory to me. ‘T thank you for your courtesy in this matter and beg to remain, “Yours very truly, “Peter Fritz.” It seems that the substance of the agreement between the parties was that the bills of the hospital and the physicians be paid, and it seems they were not paid. Approval by the board of such agreement was neither sought nor given. Ignoring the letter, the board ordered arbitration, at which plaintiff appeared and said he did not want a hearing. The hearing was adjourned indefinitely by the deputy commissioner in charge. The board again ordered arbitration at which plaintiff appeared and testified in support of his claim for compensation. The arbitration committee consisted of a deputy commissioner and two other members. Defendant was represented by counsel. As counsel for plaintiff, deputy commissioner Derham appeared, who, when questioned as to his authority to appear, said: “I appear in behalf of the State of Michigan.” Objection being made to his so appearing, he said: “The respondent in this case and the State accident fund have by every possible means availed themselves of every technicality in this case. For that reason it — 329 — has been necessary for the industrial accident board to send a representative to Dowagiac to see to it that this applicant’s interest is looked after.” Defendant’s motion to dismiss on the ground that the claim of plaintiff had been withdrawn was overruled. Plaintiff had award of $12.60 per week, and that the total of such weekly payments then due was $604.80, and for medical and hospital bills under the act, which award on review was affirmed by the board, it being found that what befell plaintiff at the foundry as stated was an accidental personal injury arising out of and in the course of his employment, and that the disability resulted from the injury. Defendants bring certiorari. 1. That it was the right, if not the duty, of the board to order arbitration regardless of the alleged agreement in settlement or waiver, or release of compensation, is settled by the opinion of this court in Dettloff v. Hammond, Standish & Co., 195 Mich. 117. 2. The service by the deputy commissioner as an attorney for plaintiff at the arbitration is indefensible, beyond the scope of his statutory duties and powers, and is without right of compensation by the State. The duties of the board are quasi-j udicial. The judicial mind opposes one’s being both judge and advocate in a cause. Such practice brings an administration of the law into disfavor. But the board on review had no power to vacate the arbitration proceedings, to order another arbitration, or to grant a rehearing on arbitration. See Jones v. St. Joseph Iron Works, 212 Mich. 174, where it was said: “When the arbitrators make their award either for or against the plaintiff, that award fixes the rights of the parties, and these rights are, in the absence of fraud, irrevocably fixed unless the board on review, hearing the case de novo, upon the testimony already taken, and such additional testimony as the parties may submit, reaches a different conclusion. In this — 330 — way, and this way alone, may the award of the arbitrators be set aside.” The power of this court as expressed by the statute is to review questions of law involved in the final determination of the board and to make such orders in respect to such final determination as justice may require. Section 5465, 2 Comp. Laws 1915. The irregularity in the arbitration is not involved in the final determination of the board, and, therefore, cannot affect the result here. 3. The board in its findings disregards the testimony of the physician called by the employer as to plaintiff’s being overcome by the heat and finds an, accidental personal injury under the act, from the testimony of the plaintiff and his fellow workman in respect to the wrenching, twisting, and jerking suffered by plaintiff because of the slipping or catching of the ladle, and the pain then suffered by plaintiff in the region of the appendix, and the subsequent history of his ailment. The finding has evidential support and therefore is sustained. That what befell plaintiff was an accidental personal injury under the act, see: 14 N. C. C. A. p. 527; Schanning v. Standard Castings Co., 203 Mich. 612; Robbins v. Original Gas Engine Co., 191 Mich. 122; Grove v. Michigan Paper Co., 184 Mich. 449. The finding by which influenza as a cause of the disability was eliminated may not be said to have no evidence to sustain it. Nor can we say that there is no evidence that the subsequent disability and the appendicitis are not attributable to the accident. To do so would ignore certain of the medical testimony upon which; the board based its finding as to the disability. The medical testimony here is distinguishable from that reviewed in Weidner v. Northway Motor & Manfg. Co., 205 Mich. 583, cited by counsel. And that plaintiff’s disability may have resulted from the — 331 — accidental aggravation of a chronic ailment and that he may have been predisposed because of disease to this form of attack have nothing .to do with the question of whether what befell him is to be regarded as an accident. La Veck v. Parke, Davis & Co., 190 Mich. 604; St. Clair v. Meyer Music House, 211 Mich. 285; 10 N. C. C. A. 756. The award is affirmed. Fellows, C. J., and Wiest, Bird, Sharpe, Moore, and Steere, JJ., concurred. The late Justice Stone took no part in this decision. Footnotes [1] Authorities discussing the question as to what is an accident within the meaning of workmen’s compensation acts, in general, are collated in notes in L. R. A. 1916A, 29, 227; L. R. A. 1917D, 103; L. R. A. 1918F, 867.