Sheppard v. Michigan National Bank

Dethmers, C. J.

(concurring). In Croff v. Lakey Foundry & Machine Company (1948), 320 Mich 581, 585, 586 , I wrote:

“I am persuaded that it was the legislative intent, in enacting the 1943 amendment, * that disabilities resulting from personal injuries (as distinguished from disabilities resulting from the aggravation of pre-existing disease or condition) which arise out of and in the course of employment should thereafter be compensable, even though not occasioned by accident or fortuitous event.”

*629 I pointed out that the majority position affirming an award of compensation in Anderson v. General Motors Corp., 313 Mich 630 , set forth in 2 opinions, was predicated on no different grounds than acceptance of that view of the 1943 amendment. I further wrote (p 584) :

“Subsequently, the continued adherence of a majority of this Court to the majority view in the Anderson Case has been brought into question in Kasarewski v. Hupp Motor Car Corp., 315 Mich 225 ; and in Samels v. Goodyear Tire & Rubber Co., 317 Mich 149 . The instant case affords an opportunity for clarification.”

Clarification of Court alignment there was, the decision in Groff disclosing a Court evenly divided on the question of the effect of the 1943 amendment.

From Croff , in 1948, until Arnold v. Ogle Construction Co., 333 Mich 652 , in 1952, that 4-to-4 division of the Court apparently persisted. The latter case revealed a further shifting of the Anderson majority, a new 5-to-3 majority holding that an accidental or fortuitous causal event was still prerequisite to compensation under part 2 of the act, despite the 1943 amendment. Mr. Justice Bushnell and I joined in the vigorous dissent written by Mr. Justice North. It was now clear that the lines had become fixed and the law on the subject determined. Justices North, Bushnell and I, the dissenters, believing it essential to the orderly processes of a court of last resort and confidence therein, concluded that we ought thereafter to consider ourselves bound by the holding of the majority, without stubborn persistence in and reiteration of our own view, at least until such time as it might appear that it again represented that of a majority. As Mr. Justice Bushnell wrote concerning a similar situation in People v. DeMeerleer, 313 Mich 548 :

*630 ■■ “The writer'of the present opinion expressed his views- at length in a dissenting opinion in People v. Crandell, 270 Mich 124, 130 . Having done so, he now considers himself bound by the Court’s views of the matter as expressed in the opinion prepared by Mr. Justice Wiest.”

Consequently, -when it fell to this writer’s lot to write the opinion for the Court in subsequent cases, such as Nichols v. Central Crate & Box Co., 340 Mich 232 , effect was given to the majority view, as announced in Arnold , this writer feeling bound, though, not persuaded, thereby. (There was, of course, the additional factor in Nichols , not present in the instant case nor in Arnold , that the disability was due to the aggravation of a pre-existing disease, thus bringing it squarely within the meaning of Hagopian v. City of Highland Park, 313 Mich 608 .)

, The holding in Arnold that an'accidental or fortuitous causal event was still prerequisite to" compensation was followed by invitations to circumvent that holding by judicial redefinition of “accident.” Typical is Nichols , in which it was urged that when plaintiff attempted-to move a log with a cant hook and it failed to respond to pressure as he had expected, an unexpected event had occurred constituting an accident-within the meaning of part 2 of the act: But it had long been held in this State that “lifting something heavy in the regular course of employment” or “exertion not shown to have been unusual to or greater in degree than ordinarily experienced in the general field of common labor” does not constitute a fortuitous event or accident. Stombaugh v. Peerless Wire Fence Co. (1917), 198 Mich 445 ; Tackles v. Bryant & Detwiler Co., 200 Mich 350 ; Sinkiewicz v. Lee & Cady, 254 Mich 218 ; Marlowe v. Huron Mountain Club, 271 Mich 107 ; Williams v. National Cash Register Co., 272 Mich 553 ; Waites v. Briggs Manufacturing Co., 280 Mich 185 ; Nagy *631 v. Continental Die Casting Corp., 283 Mich 162 . Arnold was also followed by allurements, as in Nichols and in Wieda v. American Box Board Co., 343 Mich 182 , to judicial change of definition to be accomplished by holding that an accident had occurred, sufficient to warrant compensation under part 2 of the act, even though there had been no accidental or unexpected event causing the injury, if the result, the injury itself, had been unexpected. But as far back as 1916, in Robbins v. Original Gas Engine Co., 191 Mich 122 (which had been followed consistently since), this Court had said (p 128):

“It is not sufficient that there be an unusual and unanticipated result; the means must be accidental— involuntary and unintended. There must, too, be some proximate connection between accidental means and the injurious result.”

• We are dealing with the construction of a statute. Since its original enactment in 1912 it has frequently and constantly received further legislative attention and amendment * — never, however, during the 31 years intervening between its adoption and the 1943 amendment, was there such amendment as indicated legislative dissatisfaction with judicial definition of the term “accident.” Where a statutory provision is re-enacted without change in language, it must be presumed that the action was taken in the light of prior judicial construction placed upon it and with the intent to adopt such construction. Van Antwerp v. State, 334 Mich 593 . When the Supreme Court has placed an interpretation on a statute over a considerable period of years it may indulge in the judicial assumption that the legisla *632 ture has been content with that interpretation because of its failure to exercise its independent prerogative to restate the provision. Twork v. Munising Paper Co., 275 Mich 174, 178 .

“In In re Clayton Estate, 343 Mich 101, 107 , this Court quoted with approval the principle enunciated in 21 CJS, Courts, § 214, pp 388, 390, as follows:

“ ‘ “The doctrine of stare decisis applies with full force to decisions construing statutes or ordinances, especially where the construction has been long acquiesced in. * * *

“ ‘ “This rule is especially applicable where the construction placed on a statute by previous decisions has been long acquiesced in by the legislature, by its continued use or failure to change the language of the statute so construed, the power to change the law as interpreted being regarded, in such circumstances, as one to be exercised solely by the legislature.” ’ * * *

“To grant the relief requested by the plaintiff would require this Court to exercise legislative prerogatives.” (Emphasis supplied.) Consumers Power Company v. County of Muskegon, 346 Mich 243, 251 .

See, also, cases to same effect from other jurisdictions, cited in In re Clayton Estate, 343 Mich 101 . Agreeable thereto, I was unwilling to avoid the holding of the Court in Arnold , even though not expressive of my own view, by the simple expedient of watering down our previous decisions, some of 40 years’ standing and apparently long accepted by the legislature, as to what constitutes an accident. To do that seemed to me tantamount to amendment of the statute by judicial fiat and invasion of the legislative province by the Court.

The situation is otherwise with respect to the construction placed by this Court, in Arnold , on the 1943 amendment. It did not reflect the unanimous view of the Court, nor has it been followed by such lapse of time, general acceptance and establishment *633 as a part of the tissue of the law, or circumstances indicating legislative acceptance and approval as to inhibit recognition or, at least, a sounding out of the possibility of a changed majority view on this Court warranting reiteration of the view expressed in my opinion in Groff. Accordingly, for the reasons advanced at length by Mr. Justice Bushnell in Hagopian and Anderson , by Mr. Justice North in Anderson and Arnold , and by me in Groff, I would affirm the award, with costs to plaintiff, on the ground that she has suffered a disability resulting from a personal injury which arose out of and in the course of her employment and which, therefore, should be held to be compensable under the 1943 amendment, even though not occasioned by accident or fortuitous event.

Kelly, J., concurred with Dethmers, C. J.

PA 1943, No 245.

Since its enactment in 1912 the act was subjected to 196 amendments, adopted in 22 regular and 3 special sessions of the legislature. In only 3 of its regular sessions, those of 1923, 1925 and 1941, were no amendments adopted. Countless others were introduced through the years, which failed of passage.