Sheppard v. Michigan National Bank

/Etil'a Sheppard was- awarded compensation on' strength of fact's appellants • have stated with commendable brevity in their brief. I quote:

“In her work as an I. B. M. operator the plaintiff, Eula Sheppard, lifted and handled 6 or 8 trays of I. B. "M." cards each day. Each 'tray - of cards weighed approximately 25 pounds. On December 14, 1953, the plaintiff leaned over to pick, up a tray of cards from a tub file. The tray stuck, and then the plaintiff yanked' on it, and when she yankedy the ■‘pains flew all over’ her back. Plaintiff’s counsel asked the following question:

“ .‘When you pulled on the tray did it give or did It not, or did it stay stuck V and the plaintiff answered:

“ ‘The first time it stuck and stayed there and then I gave it a yank and I brought it up -but I turned it ■loose-when. the- pains went throug'h my back.’ ”

Counsel say the proof does not establish'that the plaintiff suffered a compensable injury, and ask us to reverse the award by force of Nichols v. Central Crate & Box Co., 340 Mich 232;* Arnold v. Ogle Con struction Go., 333 Mich 652; and Simpson v. Matthes, 343 Mich 125.

Thus we have before us another “strain case” arising under the workmen’s compensation act. Ere end of the year this case, along' with others to come, may lift us from the abominable morass into which the decade since Hagopian v. City of Highland Park, 313 Mich 608, has thrust this Court and our imprecation-muttering legal profession. The compensation act was-proclaimed upon enactment as a welfare-promoting means toward certain and inexpensive determination of right to “compensation of workmen for industrial injuries upon the basis of trade risks relating to the industry, to be charged against it as part of the cost” (quotation from Mack-in v. Detroit-Timkin Axle Co., 187 Mich 8, 14), yet our Kilkenny decisions in strain cases have fought each other from Sam Hagopian’s injury through Donald Brazauskis’ death to the point where there is nothing left so far as certainty is concerned excepting the well-chewed tails thereof.

Brasauskis (Brazauskis v. Muskegon County Board of Road Commissioners, 345 Mich 480), the 4 to 4 deadlock of April 2d last, and now the misshapen 3-2-2 monster known as Beltinck’s Case (Beltinck v. Mt. Pleasant State Home and Training School, 346 Mich 494), unitedly prove the parable. Indeed, they liken us to the Etruscan array, faltering at Tiber’s bridge. Here we stand, wavering from term to term, fearful of unvarnished avowal, pictured as by Macaulay’s pen:

“But those behind cried ‘Forward!’

And those before cried ‘Back!’ ”

Happily, the end of all this legal teratology is near, as forecast in Wieda’s dissent last year (Wieda v. American Box Board Co., 343 Mich 182, 191). Two of my Brothers, having refused to sign Mr. Justice Smith’s exhaustive dissent in Wieda, now accept in Beltinck the tried and sound linchpins of such dissent. I refer to Mr. Justice Kelly’s belated though presently praiseworthy reliance on Fenton v. J. Thorley & Co., Limited, [1903] AC 443 (72 LJKB 787, 89 LT 314); and Twork’s (Twork v. Munising Paper Co., 275 Mich 174) quotation from Watson v. Publix Riviera Theatre, 255 Mich 115. Four members of the present Court are thus on record in support of the proposition that the word “accident,” as employed in the workmen’s compensation act, means “an unexpected result attending the operation or performance of a usual or necessary act or event.” Why, in these circumstances, should we continue to wander aimlessly from case to case as the legal world gazes curiously on our strange paralysis? There is a way. It was glimpsed — so far as clear majority vote of this Court is concerned — and then lost in Beltinck. Even so, we are well on the way to judicial catharsis.

As this is written, with a mighty riverway of the Great Lakes flowing past my window, I am prompted again to place a date in our reports — a date of motion to accomplish now that which is just as sure as the flow of eternity’s river. I move then, this 5th day of September in the year 1956, that cases of industrial strain be governed henceforth by Justice Smith’s unerring postulate in Wieda, that the word “accident” includes both the unexpected cause and the unexpected result, and that we advise the profession of steadfast intention to follow Fenton’s guide, quoted as follows from Wieda, in pending and future cases (p 196):

“If a man, in lifting a weight or trying to move something not easily moved, were to strain a muscle or rick his hack, or rupture himself, the mishap in ordinary parlance would be described as an accident. Anybody would say that the man had met with an accident in lifting a weight, or trying to move something too heavy for him.”

Whether we adopt Fenton’s rule forthrightly at this time, or whether we do it later with or without aid of the 1937 and 1943 amendments of the workmen’s compensation act, makes but little difference-save only to the countless victims of continued purblindness. Justice Smith’s lone and majority-ignored spadework in Wieda has inexorably and righteously headed this Court toward the light of' Fenton, of Larson, of Pound, and now the Florida supreme court (Gray v. Employers Mutual Liability Ins. Co. [Fla], 64 So2d 650).

Eula Sheppard, having suffered an accidentally disabling and hence compensable rick of the back,, is entitled to affirmance of the award below, with costs.

Addendum (June 10, 1957).

This case was duly assigned to the writer, preceding submission during our June term last year. In pursuance of such assignment the foregoing dated opinion was prepared and distributed for consideration of my Brothers more than 9 months ago. Since then Justices Carr, Edwards, Dethmers, Smith, and Kelly have written in the case and our personnel has partially changed. Five present members of the Court declare now their devotion to that ■which Mr. Justice Smith originally urged upon the Court in Wieda. This is progress. That the profession be enabled to count and identify us with convenience, I am today signing Mr. Justice Smith’s opinion in this case of Eula Sheppard.

CL 1948, § 411.1 et seq., as amended (Stat Ann 1950 Rev and Stat Ann 1953 Cum Supp § 17.141 et seq.).—Reporter.

Macaulay, Lays of Ancient Rome, Horatius, stanza 50. — Reporter.

See Mack v. Reo Motors, Inc., 345 Mich 268, 278.

See Wieda’s dissent, p 201 of report, and dissent in Arnold v. Ogle Construction Co., 333 Mich 652, 666.

This is the case (Nichols) that prompted the scholarly Dean Pound to criticism of our “eminence.” He said (15 NACCA Law Journal 54) :

“Michigan has attained a bad eminence in narrow interpretation and application of the workmen’s compensation act. Larson reminds us that before any American State adopted the phrase 'injury by aceident’ from the British act, the English courts had settled- that although the cause was routine and accidental, it was enough if the--effeet on the- employee was unexpected and catastrophic-and so-accidental. As.it is well settled when a statute which has been authoritatively construed is adopted by legislators elsewhere, the construction is deemed ‘adopted with the text, this should' have' been enough, and such is the holding .in. a majority of jurisdictions. 1 .Larson, Workmen’s Compensation Law, §§ 38.00, 38.10, 38.20.” (Por discussion and reference to quotation, see Mack v. Reo Motors, Inc., 345 Mich 268, at page 281.)