La Porte v. Kalamazoo Stove & Furnace Co.

• Decision Date: 17 May 1944
• Docket Number: No. 18.,18.
• Citation: 14 N.W.2d 539,308 Mich. 687
• Court: Michigan Supreme Court
• Parties: LA PORTE v. KALAMAZOO STOVE & FURNACE CO. et al.

308 Mich. 687

14 N.W.2d 539

LA PORTE

v.KALAMAZOO STOVE & FURNACE CO. et al.

No. 18.

Supreme Court of Michigan.

May 17, 1944.

Proceedings under the Workmen's Compensation Act by Arthur La Porte against Kalamazoo Stove & Furnace Company and Liberty Mutual Insurance Company for compensation for loss of vision of plaintiff's left eye. From an award of compensation, defendants appeal.

Award affirmed.

Appeal from Department of Labor and Industry.

Before the Entire Bench.

Alexander, McCaslin & Cholette, of Grand Rapids, for appellant.

Edward J. Ryan, of Kalamazoo, for appellee.

BUTZEL, Justice.

Plaintiff and appellee was awarded compensation from the Kalamazoo Stove and Furnace Company and Liberty Mutual Insurance Company, defendants and appellants, for the loss of vision of the left eye. Plaintiff had worked for many years for the Kalamazoo Stove and Furnace Company. In 1934, he had eye trouble resulting from sand getting into his left eye. He had a recurrence of eye trouble in 1939. He claimed that on April 2, 1942, while pushing a full ladle of molten iron on an overhead track in the foundry, some of the metal spilled over the side of the ladle, fell to the floor and either a piece of the metal or a piece of cement flew up and struck him in the left eye. He was seen to put his hands up to his eyes and cry out with pain. There were two eyewitnesses to the accident. The men in the foundry at the time urged their floor committee to insist upon a new set of tracks and pulleys being installed in place of the defective ones which caused the accident. Plaintiff after sitting around for a while tried to finish pouring off metal into a mold but was obliged to go home on account of the pain in the eye. The following day, Friday, April 3, he worked. He again came to work on April 4, 1942, but the eye troubled him. He did not return to work the following Monday because of the pain. He at first attributed the condition of his left eye to a recurrence of iritis attacks of previous years. After the accident he made several visits to the foundry. He wore a white bandage over his eye. He showed his eye to the foreman who tried to dissuade him from believing that the condition was serious. According to the testimony, one or two days before July 2, 1942, the expiration of the three-month period in which defendant was entitled to notice or knowledge of the accident, plaintiff paid a visit to the main office of the stove company and reported to the company nurse that he was blind in his eye and made a claim for compensation and stated that his blindness was due to his employment. Notwithstanding the fact that there might be some question as to whether plaintiff's disability was not due to a recurrence of iritis and not to the accident, and notwithstanding the fact that plaintiff was first under the impression that his disability was due to a recurrence of iritis, from which he had suffered several times in the past, defendants concede that there was testimony to show that plaintiff did suffer an industrial accident arising out of and in the course of his employment as claimed and that they are bound by the finding of the commission to that extent.

Although the findings of the commission stated that ‘sand or a small piece of metal’ struck plaintiff's eye, appellants show that the cement floor was not covered with sand. It is immaterial whether plaintiff was struck by a particle of sand or cement, a component part of the latter being sand. The words are used interchangeably.

Defendants, however, claim that the stove company was not notified of the accident within the three months from the time of its occurrence as provided by law, and,...