Wis. Mich. Power Co. v. Gen. Cas. & Sur. Co.

• Decision Date: 02 December 1930
• Docket Number: No. 38.,38.
• Citation: 233 N.W. 333,252 Mich. 331
• Court: Michigan Supreme Court
• Parties: WISCONSIN MICHIGAN POWER CO. v. GENERAL CASUALTY & SURETY CO.

252 Mich. 331

233 N.W. 333

WISCONSIN MICHIGAN POWER CO.

v.GENERAL CASUALTY & SURETY CO.

No. 38.

Supreme Court of Michigan.

Dec. 2, 1930.

Error to Circuit Court, Dickinson County; Frank A. Bell, Judge.

Suit by Wisconsin Michigan Power Company, successors to and assignee of the Iron Mountain Electric Light & Power Company, against the General Casualty & Surety Company. Judgment for defendant, and plaintiff brings error.

Affirmed.

Argued before the Entire Bench. Leigh C. Caswell, of Crystal Falls (Max Sells, of Florence, Wis., and Shaw, Muskat & Sullivan, of Milwaukee, Wis., of counsel), for appellant.

Derham & Derham, of Iron Mountain, for appellee.

BUTZEL, J.

Plaintiff Wisconsin Michigan Power Company is the successor to and assignee of the Iron Mountain Electric Light & Power Company, which elected to come under the Michigan Workmen's Compensation Act. Defendant General Casualty & Surety Company issued its universal standard workmen's compensation policy to plaintiff's assignor. It thus became directly responsible under its policy and also subsection 4 of section 5473 of the Compiled Laws of 1915 for all awards that might be made to the employees of plaintiff's assignor. One Adolph Poisson, who had been an employee for many years, claimed that on May 15, 1926, in the course of his employment, he had sustained severe injuries; that he gave notice thereof to the superintendent both on that day and again on July 17, 1926; that he was struck on the hip by a large pole in the forenoon of May 15, 1926, and was unable to work the remainder of the morning; that he resumed work after lunch; that, except for a short period he took off in June for a wedding trip, he worked steadily until the middle of July, when he was forced to stop on account of his injuries which have totally incapacitated him. He first doctored for rheumatism, but he later found that he was suffering from what appeared to be sarcoma. Plaintiff's assignor claimed that its employees frequently sustained slight bruises and scratches, and that no particular attention was paid to them, either by the company or the employees; that it was the policy of the company to pay wages in full to employees while sick or on vacations; that it continued to pay Poisson his wages until the beginning of December, 1926, and, upon ceasing to pay, Poisson gave notice of his claim for compensation. Upon receipt of the claim, plaintiff's assignor sent defendant a copy of the claim, together with a letter dated December 4, 1926. This was the first knowledge defendant had of the accident. The reason given defendant for the tardiness of the notice was that Poisson had notified plaintiff's assignor of the accident but a few days previous. In acknowledging its receipt, defendant stated that it would look after the claim and also invited the attorneys for plaintiff's assignor to assist in the defense, if they cared to. In the course of the hearing, it developed that on May 15, 1926, and again on July 17, 1926, the superintendent of plaintiff's assignor had been informed of the accident by Poisson. Notwithstanding the fact that it thus learned that plaintiff's assignor had breached its contract by not giving prompt notice of the accident to defendant, the latter did not withdraw from the case, but continued to defend against the claim at the hearing before the deputy commissioner, and before the commission on an appeal by claimant. The deputy commissioner found that Poisson's condition was the result of disease and not an accident, but on appeal the commission reversed this finding and awarded claimant full compensation. The attorneys for plaintiff's assignor were also invited by defendant to participate in the hearing on the appeal.

After the final award, defendant wrote to plaintiff that it denied liability on account of the breach by plaintiff's assignor of the following clause of the policy: ‘This employer, upon the occurrence of an accident, shall give immediate written notice thereof to the company with the fullest information obtainable. He shall give like notice with full particulars of any claim made on account of such accident. If, thereafter, any suit or other proceedings is instituted against this employer, he shall immediately forward to the company every summons, notice or other process served upon him. Nothing elsewhere contained in this policy shall relieve this employer of his obligations to the company with respect to notice as herein imposed upon him.’

Upon failure to receive the amount of the award, Poisson brought suit and...