Gower v. Dep't of Conservation

• Decision Date: 08 April 1947
• Docket Number: No. 46.,46.
• Citation: 317 Mich. 333,27 N.W.2d 203
• Parties: GOWER et al. v. DEPARTMENT OF CONSERVATION et al.
• Court: Michigan Supreme Court

317 Mich. 333

27 N.W.2d 203

GOWER et al.

v.DEPARTMENT OF CONSERVATION et al.

No. 46.

Supreme Court of Michigan.

April 8, 1947.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Mrs. William C. Gower, widow, Carol Janice Gower and Gail Linda Gower, minors, claimants, opposed by the Department of Conservation, State of Michigan, employer, and the State Accident Fund, to recover for the death of William C. Gower, deceased employee. From an award of the Department of Labor and Industry in favor of the plaintiffs, the employee and the State Accident Fund appeal.

Award vacated.

BUSHNELL, BUTZEL and REID, JJ., dissenting.

Before the Entire Bench.

H. H. Warner, of Lansing, for plaintiffs-appellees.

Harry F. Briggs, of Lansing (Roy Andrus, of Lansing, of counsel), for defendants-appellants.

SHARPE, Justice.

Plaintiff Mrs. William C. Gower is the widow of Dr. William C. Gower who died February 5, 1945. An autopsy was performed on the body of Dr. Gower by Dr. Charles E. Black, pathologist. After the autopsy the immediate cause of Dr. Gower's death was certified as acute cardiac dilatation and contributory causes as pulmonary infarcts and pleurisy with effusion.

In 1937, Dr. Gower started working for the department of conservation. Part of his duties consisted of office work and the other part of laboratory work. The department of conservation has a laboratory at Michigan State College where Dr. Gower occasionally worked.

On January 6, 1945, Dr. Gower was seen examining the liver of a rabbit in the laboratory at the college. On January 7, 1945, his nose seemed to be running. He worked on January 8, 1945, but on coming home he complained of a pain in his chest. He remained at home until the middle of the afternoon of January 11, 1945, when he went to his office at the State office building. He worked there on Friday, January 12th, but remained at home January 13 and until he entered the hospital January 18, where he remained until February 5. Upon being discharged from the hospital, he was driven home by his wife, ate lunch and supper at home, and died the same day about 7 p. m. While at the hospital he was attended by Dr. Dorothy Dart and Dr. C. J. Stringer.

Some time in March, Mrs. Gower asked Mr. Ruhl, her husband's superior, if it would be all right if she made application to the retirement fund for benefits. She also told Mr. Ruhl that she thought her husband's death was in some manner associated with his employment. Later, she conferred with Dr. Black. In August, Dr. Black completed a further investigation into the death of Dr. Gower and concluded that Dr. Gower's death was caused by tularemia of the typhoid type. On August 25, 1945, Dr. Black made a supplemental autopsy report, in which he set forth that subsequent studies and investigations indicate the primary cause of death was due to a septicemic type of tularemia. Dr. Dart also made a supplemental report in which tularemia was added to the contributory cause of death.

On October 15, 1945, Mr. Southworth filed with the department of labor and industry an employer's basic report of industrial injury, the information for which was supplied by Mrs. Gower. On October 18, 1945, plaintiffs filed an application for hearing and adjustment of claim based on a personal injury of January 8, 1945, and alleging that Dr. Gower in the course of his work requiring autopsy of diseased animals and tissue became infected with tularemia.

On October 29, 1945, defendants filed an answer denying that deceased received an accidental personal injury arising out of and in the course of his employment; denying that his death was the result of a personal injury arising out of and in the course of his employment; and denying that the department of conservation had notice or knowledge of a personal injury within the statutory period.

The department of labor and industry made the following finding: ‘We find Dr. William C. Gower sustained a personal injury arising out of and in the course of his employment on January 6, 1945 when he came in contact with the liver of a rabbit infected with tularemia. We further find that Dr. Gower's death on February 5, 1945 resulted from that personal injury. We further find that defendant employer had notice and knowledge that the plaintiff, Mrs. Gower, was claiming that her husband sustained a personal injury, within 90 days of that occurrence. We further find that Mrs. Gower presented to the employer through Mr. Ruhl, all the available information she had at that time which was all that she could do any by so doing did satisfy the notice requirement of Section 15 of Part II of the Compensation Act. We further find that defendant employer may not be charged with the medical and hospital expenses incurred for Dr. Gower's last illness for the reason the employer was not given an opportunity to furnish such services. Plaintiff is entitled to compensation of $23.00 per week for total dependency for her use and the use and benefit of the two minor children, Carol Janis and Gail Linda, for a period not to exceed 400 weeks from February 5, 1945. Plaintiff is also entitled to be reimbursed in the sum of $300.00, the statutory allowance for funeral expenses.’

Defendants appeal. Plaintiffs urge that the department's finding that defendants had notice and knowledge that Mrs. Gower claimed her husband sustained a personal injury within 90 days after that occurrence is supported by competent evidence.

It appears that Mrs. Gower talked to Mr. Ruhl in March 1945 about making an application to the retirement board for benefits under that act, Act No. 240, Pub.Acts 1943, as amended. Upon examination, she testified as follows:

‘Q. Well, I am asking you now about any conversation you had with Mr. Rule (Ruhl) about any claim for your husband's death. Did you have such-- A. Yes.

‘Q. And what,-about what month did you have the first of these conversations with Mr. Rule? A. Well, that was,-oh, some time in March.

‘Q. In March of 1945? A. That is right.

‘Q. Within a month after your husband's death? A. That is right.

‘Q. And did you make any claim to Mr. Rule at that time that your husband's occupation had something to do with his death? A. Yes, I told him that I wanted to send this in, and he said to go ahead and do it.

‘Q. Well, you talked to Mr. Rule about a claim in what department? A. In the retirement--

‘Q. In the retirement fund? A. Yes.

‘Q. And was your husband,-had he been paying into the retirement fund? A. Yes.

‘Q. And did you know that in order to get benefits under the retirement fund, there had to be a connection between the death and the occupation? A. Yes, I found out about it.

‘Q. I see. And then did you talk to Mr. Rule about making the claim for you against the retirement fund, or helping you make the claim against the retirement fund? A. No, I just told him, would it be all right if I did. He said yes, to go ahead and do it. * * * I told Mr. Rule that I wanted to apply for this petition,-or from the retirement fund,-retirement board, and I asked about it, and they told me when I could bring proof that his illness and death was caused from his work, then they would listen to me.

‘The Commissioner: Mr. Rule said that to you? A. No I talked to Mr. Rule about it, and I wrote to the pension board,-retirement pension board, and Mr. Rule said to go ahead and do it.

‘The Commissioner: Well, now, who told you that you should bring proof that your husband-- A. The pension board itself. * * *

‘The Commissioner: Did you talk to Mr. Rule about whether or not your husband's death was due to his work? A. Yes, I did.

‘The Commissioner: What did you,-what conversation did you have with Mr. Rule about that? Tell us what your conversation was with Mr. Rule? A. Well, I don't recall exactly, but I told him I wanted to apply for it on the strength of that,-that it was through his work that he became ill. * * *

‘The Commissioner: Now, was there anything said at that time about Workmen's Compensation? A. I don't know what you mean by that. I am sorry.

‘The Commissioner: Well, that is what we are here dealing with now. I mean, was the conversation, then, limited to the retirement fund? A. Well, I had this retirement fund bulletin, and that is where I thought about this possibility about applying to the pension board,-retirement board.

‘The Commissioner: I see. A. I wrote to them and asked them about it, and they said to find cause, and I told Mr. Rule that I wanted to try and find cause, and that is what I did. * * *

‘Q. Well, let me ask you this: Did you ever talk to Mr. Rule about tularemia having anything to do with your husband's death? A. I told him I thought that, and that it was being checked.

‘Q. I see. And that was at the same time this other conversation was had, in March? A. No, it was not then. I didn't know then just exactly--

‘Q. Well, when was it you talked to him about checking this tularemia,-about when, not the exact day and hour, but within 60 days, or ninety days, or what? A. Well, I don't recall that, when-just when I did.

‘Q. Well, this first basic report of the employer was filed with the Department of Labor and Industry October 15, §945. Would it be before that? A. Yes.

‘Q. And do you know how long before that? Three months, six months, or what is your best judgment? A. Well, as soon as I had a report on the verification, I showed him that report. And he said then again to go ahead and take care of it and see.

‘Q. Well, would tht be in June or July of 1945, witness, that you had this conversation with him? A. No, it was in August.

‘Q. August? A. Yes, in August.’

The pertinent sections of the compensation act, Act No. 10, Pub.Acts 1912, 1st Ex.Sess., as last amended by Act No. 245, Pub.Acts 1943, pertaining to notice appear in part two thereof and read as follows:

‘Sec. 15. No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have...