Johns v. Wis. Land & Lumber Co.

• Decision Date: 01 October 1934
• Docket Number: No. 108.,108.
• Citation: 256 N.W. 592,268 Mich. 675
• Court: Michigan Supreme Court
• Parties: JOHNS et al. v. WISCONSIN LAND & LUMBER CO. et al.

268 Mich. 675

256 N.W. 592

JOHNS et al.

v.WISCONSIN LAND & LUMBER CO. et al.

No. 108.

Supreme Court of Michigan.

Oct. 1, 1934.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by William J. Johns and another, claimants, for the burial expenses of Andy Gardner, deceased, opposed by the Wisconsin Land & Lumber Company and the Employers' Mutual Liability Insurance Company. From an order of the Department of Labor and Industry affirming an award to claimants, defendants appeal in the nature of certiorari.

Award vacated.

Argued before the Entire Bench.Derham & Derham, of Iron Mountain, for appellants.

August J. Waffen, of Iron River, for appellee.

BUSHNELL, Justice.

Defendants appeal in the nature of certiorari from an order entered by the Department of Labor and Industry affirming an award to Johns Funeral Home in the sum of $200 for the burial of Andy Gardner. The deceased was a teamster employed by Brandt & Kayser, loggers for the Wisconsin Land & Lumber Company, who operated under a contract for the cutting of cross-ties. The contractors, having finished their work in the woods some time in February, discharged their entire crew. Gardner came back to the camp in April and worked for the contractors about four days skidding ties. Kayser testified that on the day of the accident the deceased finished putting ties on the deck at the sawmill, which was two miles from camp, and about 10 o'clock he was told to take the team back to camp and put them in the barn. Except by inference, the record does not disclose what followed. After dinner Gardner was found about 50 feet from the barn where a log jammer had come in contact with an electric power line. One of the horses was dead; the other was standing up but was hooked on the jammer. No one seems to know why Gardner was moving the jammer. Kayser called Coroner Fanscher, who is also an undertaker, and, as Fanscher was going out of the woods, Johns appeared, claiming he had been instructed to get the body. Johns testified that he had acted upon receipt of a telephone call from the defendant company, but was unable to state who had phoned and did not recognize the voice. As far as is known, Gardner was a single man, without defendants.

Appellees do not state in their brief that they accept the statement of questions set forth in appellants' brief, nor do they submit a ‘Counter-Statement of Questions Involved.’ Rule 68, Michigan Court Rules 1933. Appellants denied at the hearing that deceased was in defendants' employ but this question is not followed up in the brief. We have repeatedly held that errors not discussed on appeal in either appellants' brief or in the oral argument are presumed to have been abandoned.

It is fundamental, however, that the relation of employer and employee must be either admitted or proved. We find no facts in the record upon which either the deputy or the board could find that the deceased was in defendants' employ either as a matter of fact or a conclusion of law. 2 Comp. Laws 1929, § 8424, reads as follows: ‘If death results from the injury the employer shall pay, or cause to be paid as hereinafter provided, in addition to the indemnity paid to dependents, the reasonable expense of his last sickness and burying, which shall not exceed two hundred (200) dollars, in addition to any sum the employer may be required to pay under the provisions of section four (4) of part two (2) of this act.’

Not only is there no showing that defendant was the employer of the deceased, but there is no testimony that the expense was reasonable. The record shows that plaintiff took the body and buried it. That is all. Appellant contends that the plaintiff undertaker is not a proper party to bring compensation proceedings. Section 8420, Comp. Laws 1929, which is section 4, part 2, of the act, requires the employer to furnish or cause to be furnished reasonable medical, surgical, and hospital services and medicines when they are needed, during the first ninety days after the injury.

‘In those jurisdictions wherein the question has been decided, it is generally held that proceedings by a physician for recovery of compensation for medical services are ancillary to proceedings by the injured employee for compensation for injuries sustained, and are dependent upon the existence of a claim by the injured employee for compensation therefor.’ 72 A. L. R. 1012, and cases cited thereunder.

Our statute, section 8420, is silent as to the right of recovery by one who furnishes medical, surgical, and hospital services and medicine, and we have not had occasion to pass upon the question. The expenses of the last sickness and burial to be paid by the employer as provided in section 8424 is in addition to the indemnity paid to dependents,...