Plaintiff was awarded compensation for the personal injury hereinafter noted at the rate of $20.77 per week for a short period while he was kept from his employment, and also $243 was awarded to his physician for medical treatment. Plaintiff's employer, Michigan State Police, and its insurer, State Accident Fund, have appealed. The sole question presented by appellants is:
"Did the plaintiff, George Trumble, meet the burden of proof that he received a personal injury arising out of and in the course of his employment with the defendant, the Michigan State Police?" *Page 239
Plaintiff's injury was to his right eye, and appellants' contention is: "There is no showing that during the course of his employment a foreign body or anything else entered his right eye to cause it to bother him." The issue presented necessitates a review of the rather brief testimony in this case. We shall refer to the Michigan State Police as the defendant.
Plaintiff was employed by defendant in the capacity of a caretaker or janitor in one of the State police buildings. His work consisted of cleaning, dusting, picking up papers, mopping, cleaning washstands and toilets, and washing windows. His day's work began at 4 a.m. On October 3, 1947, plaintiff began work at the usual time, and about 6:30 or 7 o'clock that morning his right eye began bothering him. As to the condition of his eye, plaintiff's testimony was:
"It was all right when I went to work. * * * 6 or 7 o'clock I noticed my eye smarting and bothering me. And that night, when I got home, it was just as red as blood, pretty near. * * * Well, it must have been done that morning, — it must have happened that morning. * * *
"Q. Now, when you came to Mr. Chappell (plaintiff's foreman), what did you tell him?
"A. Well, I told him that I got something in my eye, and I says, `I don't know what I am going to do with it. I got to get something to put in it,' or something like that."
This witness further testified that about 6 o'clock on the morning of the injury he looked in the glass and saw that his eye was getting bloodshot. Plaintiff wore glasses and on cross-examination he was asked:
"Q. You didn't get anything out of your eye, did you? *Page 240 "A. Well, not unless it came out unbeknown to me, you know. * * *
"Q. You are not sure, that you got anything in it, though, are you?
"A. Well, I don't know what happened to it. Something happened to it. Whether I got acid in it, or something flew in my eye, or what — I couldn't say for that. * * *
"Q. Did you feel a sudden stinging pain in the eye?
"A. Oh, no, it wasn't no pain that I know of — that is, like sticking a needle in it, or anything like that."
Relative to his having gone to first aid, plaintiff's testimony was:
"I just went in and asked him if he had any stuff to put in my eye; I says, `I got something in there that is aching pretty bad,' I says, `Won't you — ain't you got some liniment or something?' He says, `No, we don't have nothing for that.' * * * Well, I told him I got something in my eye. I didn't tell him I thought so; I told him there was something in my eye. I wanted to know if he had something for it, and he says `No, I can't do nothing for that.'"
At first aid plaintiff was told he would have to go to a doctor. Plaintiff testified he had never had a doctor for eye trouble before, that his eyes had given him no trouble prior October 3d, although he had been working at the same occupation since June prior to his injury. Plaintiff also testified: "Well, I can't be positive whether anything, — something splashed in my eye, or whether I got something on my finger, and whether I done that (indicating) or not."
Dr. W.C. Behen, an ophthalmologist, who on the third day after plaintiff's injury treated him, as a witness for plaintiff, testified that in giving the doctor the history of his injury plaintiff said "that he thought he had gotten some acid or other foreign body — he wasn't quite sure what he got in his eye." *Page 241 As to the condition of plaintiff's right eye the doctor testified:
"(Plaintiff's) eye was quite inflamed; he had a very had ulcer (on the cornea) which could be of three days' duration, * * * and he had iritis, or an inflammation of the iris, which also could hook in with his history that he had gotten something into his eye three days before."
The doctor's further testimony in substance was to the following effect. An injury to or a small foreign body in the eye might cause an ulcer. In other words, when you find an ulcer of the eye you conclude there must have been some foreign body strike the eye — come in contact with the cornea. While it does not very often happen, an ulcer might possibly result from a systemic condition. Plaintiff's iritis was due to the ulcerated cornea. An ulcer may result from a foreign body entering the eye in any where from 1 to 3 or 4 days. It depends upon what was carried into the eye, how virulent it was, and the resistance of the patient, and what not. And the doctor when testifying stated that in view of the history of the case and the result of his examination he "felt" there was a "causal" relation resulting in plaintiff's eye condition; but this appears to have been on the assumption that "he (plaintiff) had gotten something in his eye 3 days before." The doctor, who treated plaintiff from October 6, 1947, to May 1, 1948, further testified that the scar tissue from the ulcer was across the area of vision in plaintiff's right eye; and that while there was no evidence of a cataract at the time plaintiff first came to the doctor for treatment, that in the meantime and at least 6 weeks prior to hearing (June 1, 1948) the doctor discovered a cataract was developing on plaintiff's right eye, and as a result of the condition of plaintiff's *Page 242 eye the vision was "put down 20/70, but it would dim out."
"Q. So that there is in motion now, a cataract forming?
"A. That is right.
"Q. And that in your opinion is a traumatic cataract, a result of this ulcer which you found on October 6th?
"A. Yes, sir. * * *
"Q. You didn't remove any foreign body from his eye, did you?
"A. No, sir."
The only witness called by defendants was plaintiff's foreman, Marshall Chappell. He testified:
"Q. When did you first know that Mr. Trumble was claiming he had some trouble with his right eye?
"A. Well, I disagree with Mr. Trumble. I believe that it was the first morning (instead of the second day), inasmuch as on making the rounds — that is, on our morning check-up through the buildings, Mr. Trumble approached me and asked me to look in his eye. He said, `I believe I have something in it.' And I lifted the lid, looked in it, and was unable to detect anything in the eye, and at that time I advised him to see a doctor, and he told me that if it wasn't feeling better, that he would do so, and he would not be in. And at that time the eye was red and inflamed. But I believe it was the first morning."
While plaintiff, who was not represented by an attorney, did not make a record which discloses in complete and exact detail just what did happen to him in the way of a personal injury that resulted in the eye condition, the following does appear and without contrary testimony: Plaintiff had not experienced eye trouble before he began his work on October 3, 1947, that while at a type of work incident to which some foreign substance might have gotten into his eye he experienced the eye trouble which *Page 243 rapidly became serious, as hereinbefore noted. The inference may fairly be drawn that plaintiff's injury arose out of and in the course of his employment, as was found both by the deputy and the commission on review. The law applicable to the instant case is well stated in the prevailing opinion in Ginsberg v. BurroughsAdding Machine Co., 204 Mich. 130, 137:
"The burden of establishing a claim for compensation rests on those seeking the award. They are not required to establish their case by positive, direct evidence; in many cases that would be impossible; they may prove their case by circumstantial evidence as other cases are established. * * * It is the province of the board [commission] to draw the legitimate inferences from the established facts and to weigh the probabilities from such established facts. * * * 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."
This present record brings plaintiff's case within the requirements of McCoy v. Michigan Screw Co., 180 Mich. 454 (LRA1916A 323, 5 NCCA 455), wherein we held:
"The burden of furnishing evidence from which the inference can be legitimately drawn that the injury arose `out of and in the course of his employment' rests upon the claimant."
Under this record we would not be justified in setting aside the award for the reason assigned in doing so in Riley v.Kohlenberg, 316 Mich. 144, from which we quote the following:
"In awarding compensation to a plaintiff, the department may not indulge in the assumption of a *Page 244 mere possibility in the nature of a guess as to whether plaintiff is entitled to compensation. Ginsberg v. Burroughs AddingMachine Co., 204 Mich. 130, 137; Marman v. Detroit EdisonCo., 268 Mich. 166."
The award entered by the commission should be affirmed, but without costs since appellee has not filed a brief.
BUSHNELL and REID, JJ., concurred with NORTH, J.