Amamotto v. J. Kozloff Fish Co.

• Decision Date: 17 April 1947
• Docket Number: No. 48.,48.
• Parties: AMAMOTTO v. J. KOZLOFF FISH CO. et al.
• Court: Michigan Supreme Court

317 Mich. 641

27 N.W.2d 118

AMAMOTTO

v.J. KOZLOFF FISH CO. et al.

No. 48.

Supreme Court of Michigan.

April 17, 1947.

Appeal from Department of Labor and Industry in the Nature of Certiorari.

Proceeding under the Workmen's Compensation Act by Kenzo Amamotto, claimant, opposed by J. Kosloff Fish Company, employer, and the State Accident Fund, to recover compensation for total disability due to hernia. To review an award of the Department of Labor and Industry in favor of the claimant, the employer and the State Accident Fund bring certiorari.

Award vacated and case remanded to department for entry of order denying compensation.Before the Entire Bench.

Riseman, Lemke & Piotrowski, of Detroit, for plaintiff and appellee.

Harry F. Briggs, of Lansing (Henry A. Compeau, of Detroit, of counsel), for defendants.

BOYLES, Justice.

On August 8, 1946, plaintiff was awarded compensation by the department of labor and industry for total disability due to hernia. The defendants appeal. The only questions for consideration relate to the giving of notice of injury to the employer and the time within which such notice must be given and claim for compensation must be made.

On November 3, 1944, plaintiff was an employee of the defendant fish company, filleting fish. On that day, while carrying a box of fish, he slipped and fell, the box hitting him in the right thigh or groin. He did not stop working. That evening he felt a pain in his groin, which became worse. The next day, he told his employer that he had slipped and fallen, and was cautioned to be careful. The precise question here involved depends upon whether plaintiff then gave his employer notice of the injury. The only testimony in that regard is from the plaintiff himself. He said nothing to his employer about his injury, on November 3d. Giving his testimony the benefit of all reasonable inferences, he informed Mr. Kozloff, his employer, the next day, that he slipped and fell. When asked a leading question about having a pain, in answer to the question ‘Then you told that Mr. Kozloff,’ he answered ‘Yes.’ He does not claim that he told his employer the box hit him in the thigh or groin. At no time then or thereafter did he tell his employer that he had a hernia. Later he testified that he told ‘every filleter in that room there’-but they were fellow workers, not his superior or employer. No explanation is given as to why he should inform all his fellow workers of his hernia, while refraining from informing his employer of his injury. While the question of giving sufficient notice is one of fact, and while we do not disturb the finding of the department if based upon competent testimony, LaPorte v. Kalamazoo Stove & Furnace Co., 308 Mich. 687, 691, 14 N.W.2d 539, we do, however, determine whether the inferences drawn are properly deducible from the testimony. Ryder v. Johnson, 313 Mich. 702, 705, 22 N.W.2d 43. We cannot conclude from the testimony of plaintiff that Mr. Kozloff would have any reason to think that plaintiff was giving him notice of having suffered a hernia.

Plaintiff continued to work for the defendant fish company without any loss of time. About a week later he discovered that he had a hernia. He made a homemade truss which he wore for about a month, then purchased a secondhand truss, and later a truss in a department store. He gave no notice of the hernia to his employer, or any other notice of any injury, but continued to work for the defendant fish company until early in March of the ensuing year. At that time he quit voluntarily to go into business for himself, and with a partner opened up an oriental food shop. He became totally disabled because of the hernia about January 15, 1946, approximately 15 months after he suffered the injury.

There is no question here but that plaintiff as a matter of fact sustained a hernia in the course of his employment. The only question for consideration is whether notice of the injury was given to the employer and whether claim for compensation was filed, within the statutory limits of time. Plaintiff makes no claim that the employer was given any notice except by the conversation he had with Mr. Kozloff the day after plaintiff slipped and fell. There in no claim that the employer had any knowledge of the matter, unless derived from said conversation. Plaintiff's claim of having sustained a hernia was never brought to the attention of his employer, until the employer was notified by the department, approximately 15 months after the injury occurred, that plaintiff had then filed with the department of labor and industry a claim for total disability due to hernia.

Plaintiff knew of his hernia condition within about a week after November 3, 1944. Section 15 of part 2 of the act, as last amended by Act No. 245, Pub.Acts 1943, Comp.Laws Supp.1945, § 8431, Stat.Ann. 1946 Cum.Supp. § 17.165, provides:

‘No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer within 3 months after the happening thereof, and unless the claim for compensation with respect to such injury, which claim may be either oral or in writing, shall have been made within six months after the occurrence of the same.’

The injury occurred November 3, 1944. The employer had neither notice nor knowledge of the injury for approximately 15 months. There was nothing to prevent plaintiff from giving such notice to his employer. While the case of La Duke v. Consumers Power Co., 299 Mich. 625, 1 N.W.2d 16, refers to an injury which occurred prior to the 1943 amendment, the requirements of section 15 of part 2 of the act, supra, as to giving the employer notice of the injury, and as to the time within which claim for compensation must be made, remain the same, except for changing ‘accident’ to ‘injury,’ and ‘industrial accident board’ to ‘compensation commission.’ In the La Duke Case the court held (syllabi):

‘The burden of establishing a claim for compensation rests upon those seeking the award (2 Comp.Laws 1929, § 8431).

‘The statutory condition that the party sought to be charged must be given or have notice or knowledge of the industrial accident within the limitation provided is a substantial right, which, when claimed, may not be ignored either by the department of labor and industry or the court (2 Comp.Laws 1929, § 8431).

‘It is mandatory that a claim for compensation under the workmen's compensation act be made upon the emloyer and where no notice of such claim is served upon the employer within the statutory period, no recovery thereunder may be had (2 Comp.Laws 1929, § 8431).’

Obviously plaintiff could not obtain compensation for hernia under part 7 of the act, Comp.Laws Supp.1940, § 8485-1 et seq., which makes hernia compensable as an occupational disease only when it is clearly recent in origin and promptly reported to the employer. Plaintiff does not seek compensation under part 7. His right to compensation, if any, must be by virtue of part 2 of the act. Comp.Laws 1929, § 8417 et seq., as amended. In Moses v. Ford Motor Co., 314 Mich. 614, at pages 617, 618, 23 N.W.2d 102, Mr. Justice North, writing for the court, said:

‘Review of the record discloses that without any fortuitous circumstance, plaintiff in the regular course of his employment in July, 1944, when lifting a box of scrap experienced a pain in his right side. He at once told his foreman he had a ‘hurt’ in his right side by lifting. Plaintiff was not taken to the employer's first aid department nor given a pass to enable him to go there. However, as p...