Bailey v. Henry Knapp & Co. , 284 Mich. 395 ( 1938 )

While working as a plasterer's helper, Robert Bailey, an employee of defendant Henry Knapp Company, was overcome by the heat of an exceptionally hot day, July 14, 1936, and died 15 hours later. Knapp Company were engaged in construction work in the city of Grand Rapids.

The records of the United States weather bureau for the day in question show a maximum temperature of 102 degrees and a relative humidity ranging from 33 to 74 per cent. At 1:45 p. m. the previous day the temperature reached an all time high of 107 1/2 degrees.

The attending physician testified that "the immediate cause of this man's death was heat prostration brought on by exposure of excessive heat, increased humidity, a secondary cause being the weakened condition of his heart."

Bailey was working on the ground floor of a store building and was supplying plaster or mortar to plasterers working on a scaffold six feet from the ceiling of the store. Under these conditions, in addition to the unusual humidity of the air that day, there was considerable moisture because of the wet mixed plaster. Due to the nature of the construction work, a board fence had been erected in front of the store, which extended on the side of the building towards the rear. There were about eight plasterers and five helpers working on the job.

The deputy commissioner, after hearing the application of claim for compensation by Bailey's widow, held that the deceased had not suffered an accident and denied the claim. The department, upon review, said in its opinion:

"There is no showing that anything unusual happened in the course of deceased's employment on that particular day and there is no showing of any unusual exertion in connection with such work. The record indicates that the above mentioned fence interfered somewhat with the circulation of the air within its confines and in the place where deceased was working, but we are not satisfied that such a factor is sufficient to constitute the heat prostration an accidental injury within the scope of the workmen's compensation act."

An order was entered affirming the award of the deputy and compensation was again denied.

Appellants contend that decedent's heatstroke was an accidental injury because the external conditions under which he worked, namely the blocking of the usual circulation of air by the fence and the increased humidity caused by the wet sand and plaster, created an "unusual condition."

Although we are mindful of the statutory differences in other jurisdictions, we have nevertheless examined the "sunstroke" and "heat prostration" decisions of other courts of last resort. Thirteen of these hold that sunstroke and heatstroke are "accidents" within the meaning of their compensation acts.Ahern v. Spier, 93 Conn. 151 (105 A. 340); Jones v. AmericanMutual Liability Ins. Co., 45 Ga. App. 392 (165 S.E. 167) by inference; Townsend Freeman Co. v. Taggart, 81 Ind. App. 610 (144 N.E. 556); Hoag v. Kansas Independent LaundryCo., 113 Kan. 513 (215 P. 295) dictum; State, ex rel. Rau, v.District Court of Ramsey County, 138 Minn. 250 (164 N.W. 916, L.R.A. 1918 F, 918); Kripplaben v. Joseph Greenspon's SonsIron Steel Co., 227 Mo. App. 161 (50 S.W. [2d] 752); Matterof Hughes v. Trustees of St. Patrick's Cathedral,245 N.Y. 201 (156 N.E. 665); Kanscheit v. Garret Laundry Co.,101 Neb. 702 (164 N.W. 708); Skelly Oil Co. v. State IndustrialCommission, 91 Okla. 194 (216 P. 933); Lobert Klein v.Whitten, 150 Okla. 72 (300 P. 636); Cowan v. Watson,

148 Okla. 14 (296 P. 974); Lane v. Horn Hardart Baking Co., 261 Pa. 329 (104 A. 615, 13 A.L.R. 963); Walsh v. River SpinningCo., 41 R.I. 490 (103 A. 1025, 13 A.L.R. 956); King v.Buckeye Cotton Oil Co., 155 Tenn. 491 (296 S.W. 3, 53 A.L.R. 1086); Scivally v. Texas Employers' Ins. Ass'n (Tex.Civ.App.), 77 S.W.2d 919. Contra are Kentucky, whose statute limits compensable diseases to those caused by traumatic accident. (See Smith v. Standard Sanitary Mfg. Co., 211 Ky. 454 (277 S.W. 806), and perhaps Maryland, Slacum v. Jolley,153 Md. 343 (138 A. 244). But see State Roads Commission v.Reynolds, 164 Md. 539 (165 A. 475).

However, we have held that heatstroke is not, in itself, an "accidental" injury. Roach v. Kelsey Wheel Co., 200 Mich. 299;Doyle v. City of Saginaw, 258 Mich. 467, and Bellinger v.Hersey Gravel Co., 267 Mich. 26. The stroke must be combined with unusual, unexpected circumstances in order to denominate it an accident. Roach v. Kelsey Wheel Co., supra. There is no showing in the instant record that the interference with the circulation of the air or the wetness of the sand were unusual or unexpected events; consequently there is no proof of the happening of an accident. At most, it may perhaps be true that, because of these factors, decedent was subjected to atmospheric conditions sufficiently different from those prevalent in the community at large to satisfy the requirement that the injury "arise out of" the employment.^* See Klawinski v. Railway Co.,185 Mich. 643 (L.R.A. 1916A, 342), and Thier v.Widdifield, 210 Mich. 355.

Appellants argue that the case of LaVeck v. Parke, Davis Co., 190 Mich. 604 (L.R.A. 1916D, 1277), is applicable and is authority for recovery in the case at bar. Assuming that, despite our holdings in theRoach, Doyle and Bellinger Cases, supra, the LaVeck Case is still the law of this State, it is nevertheless distinguishable in that it there appeared that the employee was doing an unusually large amount of rush work at the time of his injury. See Bellinger v. Hersey Gravel Co., supra, 35.

The Roach, Doyle and Bellinger Cases, supra, are controlling and we must, therefore, hold, as did the department, that Robert Bailey's death was not accidental.

The order denying compensation is affirmed.

WIEST, C.J., and BUTZEL, SHARPE, POTTER, CHANDLER, NORTH, and McALLISTER, JJ., concurred.

^* See 2 Comp. Laws 1929, § 8417 (Stat. Ann. § 17.151). — REPORTER.