Maki v. Groves

• Decision Date: 21 May 1937
• Docket Number: No. 49.,49.
• Citation: 273 N.W. 300,279 Mich. 644
• Court: Michigan Supreme Court
• Parties: MAKI et al. v. S. J. GROVES & SONS et al.

279 Mich. 644

273 N.W. 300

MAKI et al.

v.S. J. GROVES & SONS et al.

No. 49.

Supreme Court of Michigan.

May 21, 1937.

Appeal (in nature of Certiorari) from Department of Labor and Industry.

Proceedings under the Workmen's Compensation Act by Hilma E. Maki and another, claimants, for compensation for the death of Oscar E. Maki, opposed by S. J. Groves & Sons, employer, and the Standard Accident Insurance Company, insurer. From an award granting compensation, the employer and insurer bring an appeal in the nature of certiorari.

Award vacated.

BUTZEL and BUSHNELL, JJ., dissenting.

Argued before the Entire Bench.

Derham & Derham, of Iron Mountain, for appellants.

Harry K. Bay, of Ironwood, for appellees.

CHANDLER, Justice.

Oscar E. Maki was employed as a foreman by the defendant, S. J. Groves & Sons, road contractors. On December 23, 1935, he, together with other workmen, was engaged in removing ice from a low spot in a proposed roadbed. The ice was first sawed into chunks and then pulled from the water with the aid of tongs. At about 3:30 in the afternoon, Maki was prying on a piece of ice with a ladder while others pulled with tongs in an attempt to remove the same from the hold from which it had been cut. The testimony indicates that this particular piece of ice was larger than ordinary and that the number of men assisting at the time was less than usual. Maki slipped down; he groaned a couple of times; his face became discolored; and he was pronounced dead upon examination some time later. It is apparent that at this time his head struck the ice but there was no external evidence of injury.

He was carried to a point near the office of the superintendent and from there immediately taken to the hospital of Dr. Eisele in a company truck driven by Herman Larson, the employer's bookkeeper. Dr. Eisele arrived several hours later. He found Maki to be dead and was of the opinion that he had suffered a heart attack, and so certified in the death certificate signed by him.

A report was filed with the department by the employer on February 12, 1936, in which the cause and manner of death were stated to be ‘* * * suffered heart attack from which he later died. There was no accident nor injury therefrom.’ On March 23, 1936, a supplemental report of fatal accident was filed. This report, in reply to the question calling for the date of fatal accident, contained the following statement: ‘* * * No accident involved, expired from heart disease.’ This was followed by a notice and application for adjustment of claim under date of April 8, 1936. Defendants appeal from an award granting compensation to the dependents of the deceased.

This case was tried before the department principally on the theory that fatigue and exertion aggravated a pre-existing heart condition, resulting in the death of the employee. The testimony indicates that the deceased ‘slipped down.’ It does not appear whether the fact that he slipped down was one contributing to his death or was merely coincidental therewith. The department found that the facts constituted an accident. Inasmuch as this question is raised only indirectly in the briefs, we do not pass upon the issue.

Did the employer receive proper notice of an accidental injury as required by 2 Comp.Laws 1929, § 8431 et seq.? It is admitted that no written notice was given the employer, but it is contended by plaintiffs that under the facts and circumstances the employer had actual knowledge of the accidental injury within the period prescribed by the statute. In support of this contention it is submitted that the deceased was taken toward the office of the superintendent; that he was driven to the hospital in a company truck driven by the bookkeeper; that information supplied by Dr. Eisele was used in filing the reports with the department; and that the death was investigated by a representative of the insurance carrier within a week after its occurrence.

It does not appear that the superintendent was present when the deceased was taken to a point near his office or that he, or Larson, the bookkeeper, ever received any information that an accidental injury had occurred. It does not appear that the employer received any information from Dr. Eisele that would constitute a compliance with the statute. Although the defendant company may have adopted information received from Dr. Eisele in preparing its report of compensable accident and supplemental report of fatal accident, the only evidence presented as to...