Killion v. E & L Transport Co. , 321 Mich. 80 ( 1948 )

Mr. Justice REID has written for reversal; but as I view the record, the award of the commission should be affirmed.

Decision herein turns solely on the issue as to whether the deceased employee left dependents or whether he left no dependents. The opinion of the compensation commissioners contains the followings: "Upon our review of this record it is our opinion, and we find as a fact that, there are no dependents within the meaning of the workmen's compensation act." If the record before the compensation commissioners contains evidentiary matter in support of the above holding, it should be affirmed.

In this record there is no competent testimony given by any witness which tends to establish either that the deceased employee left surviving dependents or that he did not leave such dependents. Admittedly the record contains some hearsay testimony, but hearsay testimony in proceedings of this character is not competent testimony. Ginsberg v.Burroughs Adding Machine Co., 204 Mich. 130; Swedberg v.Standard Oil Co., 271 Mich. 184. However, the record does contain two reports by the employer to the department of labor and industry. The basic report contains no statement as to whether the employee left surviving dependents; but in the "supplemental report of fatal injury," the following appears:

"8. Names, ages, relationship to deceased, extent of dependency, and address of all dependents of deceased employee: — None."

On numerous occasions we have held that the employer's report to the department establishes "a prima facie case" as to the material facts stated therein. Reck v. Whittlesberger,181 Mich. 463 (Ann. Cas. 1916C, 771, 5 N.C.C.A. 917); Fitzgerald v.Lozier Motor Co., 187 Mich. 660; McCartney v. Wood-TempleCo., 217 Mich. 505; Hector v. Cadillac Plumbing HeatingCo., 226 Mich. 496; Derleth v. Roach Seeber Co., 227 Mich. 258 (36 A.L.R. 472); Kelly v. Ford Motor Co., 280 Mich. 378. Since the prima facie case thus made in support of the award was not met by any evidence to the contrary, it follows that the above quoted finding of fact by the commission is sustained by the record.

The further question is presented on this appeal as to whether the commission ruled improperly in denying defendant's application to take additional testimony. The application for taking such additional testimony was confined solely to taking testimony as to whether someone claiming the right so to do had instituted a suit at law against a third-party tort-feasor whose negligence was claimed to have caused the death of the employee. The commission properly declined to permit the taking of such testimony because, under the wording of our statute, bringing a suit against the alleged tort-feasor had no bearing whatever upon the controlling issue — i.e., was the deceased employee survived by dependents? See Fallon's Case,322 Mass. 61, (76 N.E. [2d] 144).

The custodian of the so-called second-injury fund has no control whatever in determining whether a suit at law shall be brought against an alleged tort-feasor whose negligence may be claimed to have been the sole proximate cause of the death of the employee. Without material qualification or limitation the legislature in 1943 added section 8a to part 2 of the workmen's compensation law, which section in part reads:

"If death results from the injury and the employee shall leave no dependents within the meaning of this act, the employer shall pay or cause to be paid the sum of $1,000.00 * * * into the State treasury of this State to be held as a second injury fund and applied solely to the payment of compensation as hereinafter prescribed in this section." Act No. 10, pt. 2, § 8a, Pub. Acts 1912 (1st Ex. Sess.), as added by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8424-1, Stat. Ann. 1947 Cum. Supp. § 17.158 [1]).

The award requiring payment of $1,000 by defendant into the State treasury for the second-injury fund should be affirmed. A public question being involved, no costs are awarded.

DETHMERS and CARR, JJ., concurred with NORTH, J.