Suggs v. Ternstedt Mfg. Co.

• Decision Date: 22 December 1925
• Docket Number: No. 104.,104.
• Citation: 232 Mich. 599,206 N.W. 490
• Parties: SUGGS v. TERNSTEDT MFG. CO. et al.
• Court: Michigan Supreme Court

232 Mich. 599

206 N.W. 490

SUGGS

v.TERNSTEDT MFG. CO. et al.

No. 104.

Supreme Court of Michigan.

Dec. 22, 1925.

Certiorari to Department of Labor and Industry.

Proceeding for compensation by Andrew Suggs, claimant, opposed by the Ternstedt Manufacturing Company, employer, and the Royal Indemnity Company, insurer. From an order of the Department of Labor and Industry, granting award, employer and insurer bring certiorari. Award affirmed.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.F. L. Kelley, of Detroit, for appellants.

J. Nelson Pyle, of Detroit, for appellee.

FELLOWS, J.

Plaintiff received an injury by a particle of steel becoming imbedded in his right eye. That the accident arose out of and in the course of his employment is conceded. As a result of the injury, a traumatic cataract formed, which was removed by an operation, the expense of which was borne by defendant. Since the operation, plaintiff has one-sixtieth normal vision without the use of a glass, but with a strong glass his vision with that eye is above normal, but his two eyes do not co-ordinate. If he uses the uninjured eye, he cannot wear the strong glass on the other; if he uses the injured eye with the strong glass, he must cover the other eye. The eminent specialist, Dr. Campbell, testified:

‘Yes; before he could use this injured eye he must have a very strong glass, and that very strong glass so mixes him up with the other eye that he cannot utilize it. So consequently, if he ever uses this eye, it will have to be when the other eye is excluded from vision. This is a common thing with corneal cataract. * * *

‘Q. Doctor, then in your opinion has the applicant lost the useful vision of his right eye? A. I might answer that by saying that industrially he has lost the use of the vision of that eye.’

The testimony establishes that, while plaintiff has useful vision with each eye, he can use but one of them at a time, and the commission, reversing the finding of the deputy commissioner, held that he was entitled to the statutory compensation for the loss of an eye.

Preliminary to the main question, it is insisted that the claim for review was not made within the 10 days. The return shows that the claim was received within the time, but the letter was not opened and the claim stamped until the following day. The commission had the power to extend the time; It declined to dismiss the case, and heard it on its merits. If the actual date of receipt controls, the claim was seasonably filed; if not, the commission having declined to dismiss and having disposed of the case on its merits, we may assume it would have extended the time as good cause appears for such extension, and it would profit no one to dispose of the case for this technical reason and send the case back only to have it up here again on the main question. We shall therefore dispose of the case on its merits.

The main question is new to this court, but it has received the attention of the courts in several other jurisdictions. Frings v. Pierce-Arrow Motor Car Co., 182 App. Div. 445, 169 N. Y. S. 309, was very like the instant case. It sustains defendants' contention. The workman with the aid of a proper glass had at least normal vision with the injured eye, but it would not with such glass co-ordinate with the uninjured eye. It was held that he had not lost an eye or the use of an eye; two...