Cornish v. Jackson & Tindle, Inc.

• Citation: 281 N.W. 329,285 Mich. 566
• Decision Date: 03 October 1938
• Docket Number: No. 106.,106.
• Parties: CORNISH v. JACKSON & TINDLE, Inc., et al.
• Court: Supreme Court of Michigan

285 Mich. 566

281 N.W. 329

CORNISH

v.JACKSON & TINDLE, Inc., et al.

No. 106.

Supreme Court of Michigan.

Oct. 3, 1938.

Appeal from Department of Labor and Industry.

Compensation proceeding by Fay Cornish against Jackson & Tindle, Inc., and another to recover for an injury sustained to plaintiff's left eye. From an award granting plaintiff compensation of $12 per week, defendants appeal in the nature of certiorari.

Award vacated.

Argued before the Entire Bench.

Glenn W. Jackson, of Gladstone (Kelley, Sessions, Warner & Eger, of Lansing, of counsel), for appellants.

Richard E. O'Brien, of Munising (Fred L. Warner, of Lansing, of counsel), for appellee.

CHANDLER, Justice.

Plaintiff sustained an injury to his left eye on January 26, 1932. Although he received medical treatment therefor and was inconvenienced by the injury, he continued to work until June, 1932, at which time defendant's mill was closed. It reopened in the fall of that year and plaintiff resumed his former employment, continuing to be so employed until the mill was again closed in 1934. He was re-employed at the same work on December 7, 1936 and worked steadily from that date until March 31, 1937, when he voluntarily quit because his eye had become so troublesome that he was fearful of seriously injuring himself due to the hazards of his work and the impairment of his vision.

On April 19, 1937, he instituted these proceedings before the department of labor and industry to secure compensation and following hearing received an award of $12 per week from April 1, 1937 until the further order of the commission.

It is conceded that plaintiff made no claim for compensation prior to April 19, 1937. His claim, therefore, is barred by the provisions of 2 Comp.Laws, 1929, Sec. 8431 (Stat.Ann. 17.165) unless, as he contends, the employer failed to file a report of accident as provided by 2 Comp.Laws, 1929, Sec. 8456 (Stat.Ann. Sec. 17.191). See, also, Tinney v. City of Grand Rapids, 274 Mich. 364, 264 N.W. 402;Hirsch v. Federal Steel Corp., 274 Mich. 406, 264 N.W. 844;Gulliford v. American Gear & M. Co., 277 Mich. 42, 268 N.W. 804.

The opinion of the department states: ‘The defendant insists that the claim of the plaintiff for compensation was not made within the required statutory period. The records of this department show that no report of accident in question was ever received from the defendant company.’ This constituted a finding of fact that no report of the accident was filed. Gulliford v. American Gear & M. Co., supra. However, the record certified to this court contains a report of non-compensable accident and recites that it was ‘received Feb. 10, 1932, Dept. of Labor and Industry, Lansing, Mich’. It is to be inferred from the records and briefs that this report was not attached to the department's file in the case until February 23, 1938, subsequent to the entry of its order upon appeal from the award of the deputy commissioner. Plaintiff contends that under these...