Long v. Isle Royale Copper Co.

• Court: Michigan Supreme Court
• Writing for the Court: STEERE
• Citation: Long v. Isle Royale Copper Co., 238 Mich. 436, 213 N.W. 696 (Mich. 1927)
• Decision Date: 03 May 1927
• Docket Number: No. 36.,36.
• Parties: LONG et al. v. ISLE ROYALE COPPER CO.

238 Mich. 436

213 N.W. 696

LONG et al.

v.ISLE ROYALE COPPER CO.

No. 36.

Supreme Court of Michigan.

May 3, 1927.

Certiorari to the Department of Labor and Industry.

Proceeding under Workmen's Compensation Act by Ellen Long and another for compensation for death of James C. Long, opposed by Isle Royale Copper Company, employer. Award by the Department of Labor and Industry for a less time than claimed, and claimant brings certiorari. Affirmed.

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

Rees, Robinson & Petermann, of Calumet, for respondent.

STEERE, J.

On December 18, 1918, while employed as a timber boss in defendant's mine, James C. Long sustained a serious industrial accident by being caught between a skip and the side of a mine shaft, resulting in a compound fracture of the pelvis and other injuries. He was taken to a hospital under defendant's directions, where he was given surgical attention and properly cared for. The accident was promptly reported by defendant and proceedings taken under the Workmen's Compensation Law, followed by an agreement under which he was to receive maximum compensation during total disability, then fixed by law at $10 a week. Compensation was paid him at that rate for about 16 weeks, when he had sufficiently recovered to report for duty and continue his employment at regular wages, though yet suffering more or less from his injury. He was accounted a competent and faithful workman in the line of his employment and thereafter received promotions as opportunity arose, and ‘went over the other timber bosses,’ as his daughter testified. He worked steadily from his resumption of employment, early in the spring of 1919, and lost no time on account of disability until the last working day before his death. He came home from his work on Saturday evening June 14, 1924, about half an hour early, in great distress, and the physician who was called found him in a serious condition. He was taken to the hospital, where he was operated upon, but died early Monday morning June 16, 1924. The accident had left an open wound and other complications from which he suffered more or less during the remainder of his life. Under plaintiffs' lay and medical proofs defendant's counsel conceded, in effect, that his death, though occurring about 5 1/2 years later, was imputable to the accidental injury which befell deceased on December 18, 1918.

Plaintiffs are his widow and an adult daughter. After his death they made application ot the Department of Labor and Industry for compensation as dependents, claiming to be entitled to the same for 300 weeks less the 16 weeks disability payments he had already received. The department granted them 14 weeks compensation, and they have appealed by certiorari. It is urged in their behalf that they are entitled to 284 weeks compensation, beginning from the last payment to deceased, under the provisions of section 5, pt. 2 of the Compensation Law (2 Comp. Laws 1915, § 5435); which it is contended in behalf of defendant that, as the last payment made to deceased was in April, 1919, compensation to dependents could only be continued from the time of his death until expiration of 300 weeks from the date of his injury.

Said section 5 reads as follows:

‘If death results from the injury, the employer shall pay, or cause to be paid, subject, however, to the provisions of section twelve hereof, in one of the methods hereinafter provided, to the dependents of the employé, wholly dependent upon his earnings for support at the time of the injury, a weekly payment equal to one-half his average weekly wages, but not more than ten dollars nor less than four dollars a week for a period of three hundred weeks from the date of the injury. If the employé leaves dependents only partly dependent upon his earnings for support at the time of his injury, the weekly compensation to be paid as aforesaid shall be equal to the same proportion of the weekly payment for the benefit of persons wholly dependent as the amount contributed by the employé to such partial dependents bears to the annual earnings of the deceased at the time of his injury. When weekly payments have been made to an injured employé before his death the compensation to dependents shall begin from the date of the last of such payments, but shall not continue more than three hundred weeks from the date of the injury.’

The provisions of section 12 (2 Comp. Laws 1915, § 5442), to which section 5 is made subject, read in part as follows:

‘If the injury so received by such employé was the proximate cause of his death * * * the death benefit shall be a sum sufficient, when added to the indemnity which shall at the time of death have been paid * * * to such deceased employé, to make the total compensation for the injury and death * * * equal to the full amount which such dependents would have been entitled to receive under the provisions of section five hereof in case the accident had resulted in immediate death, and such benefits shall be payable in weekly installments in the same manner and subject to the same terms and conditions in all respects as payments made under the provisions of said section five.’

The contention of plaintiffs' counsel is, as we understand it, that, reading together the provision in section 5 that where weekly payments have been made to the injured employee before his death, ‘compensation to dependents shall begin from the date of the last of such payments,’ and the provision in section 12 that dependents are entitled to receive as death benefits a sum which, added to that received by deceased prior to his death, equals the full amount they would have been entitled to receive under the provisions of section 5 ‘in case the accident had resulted in immediate death,’ it follows by fair construction of section 5 alone that they are entitled to 284 weeks compensation beginning at the end of the 16 weeks during which payment was made to the deceased, and that this is made ‘doubly sure’ by the specifications on that subject in section 12. This contention is persuasive provided we throw to the wind the express concluding provision of section 5 that payments...