I am not in accord with the opinion of Mr. Justice REID for reasons hereinafter stated.
The department of labor and industry awarded plaintiff compensation under the provisions of part 2, § 1 of the workmen's compensation act, 2 Comp. Laws 1929, § 8417, as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8417, Stat. Ann. 1946 Cum. Supp. § 17.151). It is conceded that there was no intervening fortuitous event or accident causing plaintiff's disablement.
In O'Neil v. W.R. Spencer Grocer Co., 316 Mich. 320, deceased was a grocery salesman. The claim was made that he had suffered a personal injury and that the fortuitous event was the effort occasioned by the hazard of driving his car while roads were covered with a mantle of snow. We there held that the exertion of driving his car on streets after a heavy fall of snow was an experience common to all motorists in the city of Jackson on that particular day; and that the driving of a car under such circumstances was not a fortuitous event. We said, "The record substantiates the claim that deceased's death was due to a disease of life to which the public in general is exposed." We approved the following from Hagopian v. City of HighlandPark, 313 Mich. 608, 619, 621, 625:
"We have frequently held that under the compensation act, prior to the adoption of the occupational *Page 163 disease amendment, one performing the ordinary work for which he is hired cannot recover unless there is an accident or a fortuitous event causing the disability. * * *
"The amended act itself was not intended to cover aggravation of pre-existing disease without an accident or fortuitous event. * * *
"It properly was restricted to accidents and occupational diseases."
In the case at bar, there being no fortuitous event, compensation may not be granted under part 2 of the act.
Plaintiff's application for hearing and adjustment of claim reads as follows:
"The applicant respectfully shows:
"1. That this claim relates to a personal injury which occurred on or about ____ OR To a disablement from occupational disease which occurred on or about January 27th 1945."
The cause was tried upon the theory that plaintiff had suffered a personal injury. The award of the department is based on part 2, § 1, of the workmen's compensation act.
Mr. Justice REID affirms the award as though it had been made under part 7 of the workmen's compensation act (Comp. Laws Supp. 1940, 1945, § 8485-1 et seq., Stat. Ann. 1946 Cum. Supp. § 17.220 et seq.) without a finding of fact by the department on that question. The application filed by plaintiff is broad enough for the department to make such a finding of fact.
The award should be reversed and the cause remanded to the department to determine whether or not plaintiff is entitled to an award under part 7 of the act. Costs to await results.
CARR, C.J., concurred with SHARPE, J. *Page 164