Dodge v. Gen. Motors Corp., 13.

• Citation: 316 Mich. 425,25 N.W.2d 579
• Decision Date: 06 January 1947
• Docket Number: No. 13.,13.
• Parties: DODGE v. GENERAL MOTORS CORPORATION, BUICK MOTOR DIVISION.
• Court: Michigan Supreme Court

316 Mich. 425

25 N.W.2d 579

DODGE

v.GENERAL MOTORS CORPORATION, BUICK MOTOR DIVISION.

No. 13.

Supreme Court of Michigan.

Jan. 6, 1947.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Harold A. Dodge, claimant, opposed by the General Motors Corporation, Buick Motor Division, employer. From an order of the department of labor and industry reversing the Deputy Commissioner's award denying compensation, the employer appeals.

Reversed.

Before the Entire Bench, except BUTZEL, J.

Henry M. Hogan, of Detroit (G. W. Gloster, E. H. Reynolds, and R. V. Hackett, all of Detroit, of counsel), for appellant.

H. H. Warner, of Lansing (Raymond H. Rapaport, of Lansing, of counsel), for appellee.

DETHMERS, Justice.

Defendant appeals from an order of the Department of Labor and Industry reversing the award of the Deputy Commissioner which denied plaintiff compensation. The Deputy Commissioner's award was filed and copies mailed to the parties on May 21, 1945. On August 13, 1945, plaintiff filed with the Commission a petition for a delayed appeal, supported by the affidavit of plaintiff's attorney, which recited, in substance, that he had been retained by plaintiff after the statutory ten day period for appeal had expired, that he had examined the records of the case and believed plaintiff had a meritorious case, and that the delay was due to circumstances beyond the control of plaintiff and his attorney and was not due to the negligence of either. On September 10, 1945, the Commission granted a delayed appeal and on January 15, 1946, reversed the award of the Deputy Commissioner and granted plaintiff compensation. Defendant appeals on the ground, inter alia, that the Commission's order granting a delayed appeal amounted to an abuse of discretion.

Section 8447, 2 Comp.Laws 1929, as amended by Act No. 245, Pub.Acts 1943, Comp.Laws Supp.1945, § 8447, Stat.Ann. 1946 Cum.Supp. § 17.182, reads in part:

‘Unless a claim for a review is filed by either party within 10 days, the decision shall stand as the decision of the compensation commission: Provided, That said commission may, for sufficient cause shown, grant further time in which to claim such review.’

Was sufficient cause shown? Plaintiff contends that this question, raised by the statute, is addressed to the sole discretion of the commission, that this court does not substitute its discretion for that of the commission which cannot come before us for consideration in the absence of a finding of an abuse of discretion. As authority for this proposition, plaintiff cites the case of Curley v. Beryllium Development Corp., 281 Mich. 554, 275 N.W. 246. But in that case, in which lack of an attorney and plaintiff's ignorance of the time limit on appeals were advanced as the reasons and cause for delay, Mr. Justice Wiest, speaking for the court, said (page 558 of 281 Mich. 554,275 N.W. 246, 248):

‘It would have been an abuse of discretion on the part of the board had recognition been given to the reason alleged.’

And in the case of Brunette v. Quincy Mining Co., 197 Mich. 301, 306, 163 N.W. 1013, 1014, it was said:

‘When the time fixed by statute expires without any claim of review filed by either party, the award stands as the decision of the Industrial Accident Board. Only in exceptional cases and for some special reason the board may, upon a meritorious application showing in its judgment sufficient cause for further delay, grant an extension of time.’

While the affidavit...