Dation v. Ford Motor Co.

Citation314 Mich. 152,22 N.W.2d 252
Decision Date01 April 1946
Docket NumberNo. 44.,44.
PartiesDATION v. FORD MOTOR CO.
CourtSupreme Court of Michigan

OPINION TEXT STARTS HERE

Appeal from Department of Labor and Industry.

Proceeding under Workmen's Compensation Law by Harry Dation, opposed by the Ford Motor Company, to recover for disability allegedly due to an occupational disease. From a denial of his application to Department of Labor and Industry for hearing and adjustment of claim, plaintiff appeals.

Remanded for further proceedings in accordance with opinion.Before the Entire Bench.

Maurice Sugar, of Detroit (Benjamin Marcus and Jerome W. Kelman, both of Detroit, of counsel), for plaintiff and appellant.

E. C. Starkey and William J. Jones, both of Dearborn, for defendant and appellee.

John R. Dethmers, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and Daniel J. O'Hara, Asst. Atty. Gen., amici curiae.

CARR, Justice.

Plaintiff entered the employ of defendant, in its millwright department, in April, 1923. He continued in such employment until August 11, 1943, when he quit working because of his physical condition. During the three-year period immediately preceding the latter date plaintiff suffered from a chest condition which required him to take leaves of absence, for periods of approximately four weeks, in the summer of 1940 and again in 1941. In December, 1942, he was classified as a chipper and grinder and so continued until his employment terminated.

Claiming that his disability was due to an occupational disease within the meaning of, and that he was entitled to compensation under, the provisions of the Workmen's Compensation Law (Act No. 10, Pub.Acts 1912, 1st Ex.Sess., as amended, see 2 Comp.Laws 1929, § 8407 et seq., Comp.Laws Supp.1940, 1943, § 8408 et seq., Stat.Ann. § 17.141 et seq. and Stat.Ann.1943 Cum.Supp. § 17.142 et seq.), plaintiff filed his application with the department of labor and industry for hearing and adjustment of claim. The application was denied and plaintiff has appealed. The departmental procedure, and the reasons for denying the claim are concisely set forth in the following excerpt from the department's opinion:

‘The plaintiff's petition alleged that he had been employed as a foundryman for 24 years and that as such he was exposed to the hazards of employment including dusts and that he had become disabled by reason of ‘pneumoconiosis, possibly complicated by sequelae such as tuberculosis.’ The matter was referred to a medical commission appointed pursuant to section 6 of part 7 of the workmen's compensation act and the medical commission found that the plaintiff did not have pneumoconiosis but that he did have X-ray and clinical evidence of tuberculosis. The medical commission's report was based on an examination given the plaintiff on January 3, 1945. The plaintiff's lung condition which he alleges is disabling has not changed in nature or character during the period of his disability. Inasmuch as this condition was not pneumoconiosis on January 3, 1945, it follows that it has not been pneumoconiosis during any of the rest of such period. There is no claim that tuberculosis is compensable except as a sequelae of pneumoconiosis, which we and the medical commission have found the plaintiff does not and has not had. The award of the deputy commissioner is affirmed.'

The action of the department in appointing a medical commission was taken at defendant's request under the provisions of part 7, § 6, of the Workmen's Compensation Law, which part was added by Act No. 61, Pub.Acts 1937. The section in question (Comp.Laws Supp.1940, § 8485-6, Stat.Ann.1945 Cum.Supp. § 17.225) reads as follows:

‘See. 6. In case the employe is alleged to be suffering from an occupational disease and there shall be a dispute with respect thereto, the said board, or any member thereof, shall appoint a commission of three qualified impartial physicians to examine the injured employe and to report. The report, when signed by at least two of the members of said commission, shall be final and conclusive as to the condition of said employe with respect to the alleged disease or diseases. Members of the commission shall receive such compensation for their services as shall be fixed by the board, to be paid from the appropriation to the department of labor and industry.’

In construing the language of the section this court has held that the report of the medical commission is to be regarded as final only as to the condition existing at the time of the examination. Smith v. Wilson Foundry & Machine Co. 296 Mich. 484, 296 N.W. 654;Flanigan v. Reo Motors, Inc., 300 Mich. 359, 1 N.W.2d 572;Nicholas v. St. Johns Table Co., 302 Mich. 503, 5 N.W.2d 442;Walker v. LoSelle Const. Co., 305 Mich. 121, 9 N.W.2d 29. In holding that plaintiff was not entitled to compensation the department obviously had this construction in mind but came to the conclusion on the record before it that plaintiff's ailment, as found by the medical commission at the examination held on January 3, 1945, had not changed during the period of his disability.

On behalf of plaintiff it is claimed that sec. 6, above quoted, is unconstitutional in that it violates the ‘due process of law’ clause of the Mich.Const., art. 2, § 16, and the Fourteenth Amendment to the Federal Constitution. Emphasis is placed on the failure of the statute to give to the parties in interest the right to appear before the medical commission and present evidence. It is insisted that such failure deprives the parties of a right to a full and fair hearing and operates to prevent the introduction of rebuttal proofs. Attention is called to the requirement that the department of labor and industry accept the report as final as to the condition of the employee on the date of the examination, without opportunity to consider the proofs presented to the medical commission; and to the fact that the court, in reviewing the departmental action, cannot have such proofs before it. Counsel for plaintiff in their brief summarize their position as follows:

We maintain that the appointment of a medical commission in this State is unconstitutional because it deprives the litigant of a right to a proper hearing of the issues in his case and of judicial review of the reasonableness of the determination by an administrative board.’

On behalf of defendant it is insisted that plaintiff is not entitled to raise the constitutional question in this court because he failed to do so in the course of the proceeding before the department of labor and industry. Attention is called to McLean v. Eaton Mfg. Co., 286 Mich. 285, 282 N.W. 150;Rickard v. Bridgeman-Russell Co., 288 Mich. 175, 284 N.W. 689;Rajkovich v. Oliver Iron Mining Co., 292 Mich. 162, 290 N.W. 365, and earlier cases of like import, in which this court followed the general rule of practice that a point not raised in the proceeding prior to appeal will be disregarded. In each of these decisions, however, the question sought to be raised on appeal involved the determination of issues of fact rather than the constitutionality of a statutory provision directly involved in the controversy.

In functioning under the Workmen's Compensation Law the department of labor and industry acts in a fact-finding capacity. Its powers and duties are not judicial in character but rather are merely quasi judicial. Generally speaking, an administrative board, commission or department possessing powers of such character does not undertake to determine constitutional questions. In Flanigan v. Reo Motors, Inc., supra, counsel sought to raise before the department the constitutionality of the section here involved. The department, however, declined to pass on the matter indicating its view of the situation, and its general policy, in the following statement:

‘The department of labor and industry is a fact-finding commission and in view of the fact that this is a constitutional question under the law, it comes within the province of the judicial tribunal provided by law.’

Counsel for defendant also cite part 3, § 16, of the Workmen's Compensation Law, as amended by Act No. 245, Pub.Acts 1943, Comp.Laws Supp.1945, § 8455 (Stat.Ann.1945 Cum.Sup. § 17.190), which in terms requires that all questions raised under the act shall be determined by the department. It is argued that the language used is sufficiently comprehensive to include a question of the character involved in the case at bar. With such claim we are unable to agree. Commenting on the statute, it was said by this court in Michigan Mutual Liability Co. v. Baker, 295 Mich. 237, 294 N.W. 168, 170:

‘While the department has jurisdiction to determine ‘all questions', 2 Comp.Laws 1929, § 8455; § 17.190 Stat.Ann., arising under the Compensation Law, it must be borne in mind that it is an administrative tribunal only and not a court possessing general equitable and legal powers. Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N.W. 49.’

Reference in the statute cited to ‘All questions arising under this act must be given an interpretation consistent with the powers vested in the department. It was unquestionably the intention of the legislature that the department in its fact-finding capacity should pass on factual issues presented in proceedings brought under the Workmen's Compensation Law. The limitations on the power of the department, under the section cited by defendant, are clearly indicated by the language above quoted from Michigan Mutual Liability Co. v. Baker, supra, cited with approval in Stuart v. Spencer Coal Co., 307 Mich. 685, 12 N.W.2d 443.

The general rule that a question may not be raised for the first time on appeal to this court is not inflexible. When consideration of a claim sought to be raised is necessary to a proper determination of a case, such rule will not be applied. Thus in Thomas v. Morton Salt Co., 258 Mich. 231, 242 N.W. 235, it was held that the question of estoppel to deny the constitutionality of a statute was properly...

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