Owen v. Cope Swift Foundry Co., 29.
| Citation | 286 Mich. 601,282 N.W. 836 |
| Decision Date | 21 December 1938 |
| Docket Number | No. 29.,29. |
| Parties | OWEN v. COPE SWIFT FOUNDRY CO. et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Department of Labor and Industry.
Proceedings under the Workmen's Compensation Act by Albert Owen, employee, opposed by the Cope Swift Foundry Company, employer, and the American Mutual Liability Insurance Company, insurer. From an order granting to plaintiff and defendants the right to take further testimony, defendants appeal in the nature of certiorari.
Affirmed and cause remanded, with directions.
Argued before the Entire Bench.
E. Dean Alexander, of Detroit, for appellants.
I. W. Ruskin, of Detroit (Lester L. Johnson, of Detroit, of counsel), for appellee.
Plaintiff filed a petition with the department of labor and industry for compensation. The cause was tried before a deputy commissioner on December 16, 1937, and March 8, 1938. On March 10, 1938, an award was made denying compensation. The award was filed with the commission on March 11, 1938.
It appears that when the cause came on for hearing on March 8, 1938, plaintiff filed a petition for leave to take further testimony. Defendants filed a motion to dismiss the petition for the reason that the petition did not comply with the terms of rule 16 (being rule 10 (1935) of the department. No action was taken by the department of labor and industry upon either the petition or the motion to dismiss.
About April 4, 1938, Plaintiff filed a petition with the department of labor and industry, the purpose of which was to take further testimony; and on or about April 12, 1938, defendants filed objections to the petition and at the same time filed a petition to take further testimony, if plaintiff's petition was granted.
On April 18, 1938, the department entered an order denying plaintiff's petition to take further testimony for failure to comply with Rule No. 10, § 2, of the rules of practice and procedure of the department. On May 12, 1938, the department entered an order granting to plaintiff and defendants the right to take further testimony. Defendants appeal and contend that the department was in error in setting aside its order of April 18, 1938.
The order of April 18, 1938, denied to plaintiff the right to take further testimony for the reason that the petition to take further testimony failed to comply with Rule 10, § 2, of the rules of the department.
The above section 2 of rule 10 provides that additional testimony may be taken by deposition while the case is pending on appeal. The record in this cause shows that when plaintiff first filed his petition to take additional testimony (March 8, 1938) no appeal had been taken from the award of the deputy...
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