Mauch v. Bennett & Brown Lumber Co.

Plaintiff testified that on or about January 1, 1924, while employed as a logger, a canthook fell on his foot, bruising a great toe which soon thereafter was frozen. He froze no other part of his body. A physician testified:

"He would not have frozen the toe, in all probability, if he had not received the injury and disturbed the normal circulation."

Gangrene, operation, and resulting disability followed. An award of compensation is reviewed on certiorari.

1. That the disability was due to freezing and not to an accident within the meaning of the act. Doubtless the gangrene, the operation, and the disability resulted directly from the freezing, but, there being evidence that the freezing was a consequence of the prior accidental personal injury arising out of and in the course of the employment, the department might and did find as a fact that the disability was due to the accident. The finding has some evidence to support it and therefore is conclusive on this court.

2. That claim for compensation was not made within six months as provided by section 15, pt. 2, Act No. 64, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 5445).

On March 25, 1924, plaintiff sent to defendant employer the following letter:

"St. Mary's Hospital, Marquette, Michigan.

3-25-24.

"Just dropping you a few lines to ask you about my compensation because I was laid up since the 31st of January. I froze my foot while in your employ and was taken to St. Mary's Hospital January 8, 1924, and had my toe amputated on the 14th of January and as soon as I receive compensation I am ready to leave the hospital. See what you can do about it.

"Yours,

"JOHN MAUCH,

"Marquette."

Counsel say that this is not an unequivocal demand for compensation and therefore insufficient, citing Rubin v. FisherBody Corp., 205 Mich. 605. We think the claim is sufficient and unequivocal.

3. That no notice of injury was given to the employer within three months as provided by the statute cited above. The claim for compensation was made within the three months. On January 12, 1924, the employer made to the department report of compensable accident. Section 17, pt. 3, Act No. 64, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 5470). Neither paper speaks of the bruise. Both speak of the freezing. In such notice as the plaintiff gave to his employer during the period of three months he spoke of the result rather than the cause of his injury — of the consequence of the accident rather than of the accident itself. Such notice was inaccurate. But accuracy and nicety of statement are not required imperatively. The importance of the notice of injury is that the employer may have opportunity for investigation while the facts are accessible.Armstrong v. Oakland Vinegar Pickle Co., 197 Mich. 334. The mere freezing was not an accident. Sherman v. Flint SpringWater Ice Co., 229 Mich. 648. But, while the plaintiff's notice of injury was inaccurate, the employer had notice that plaintiff claimed of the freezing an accidental personal injury under the act and sought compensation therefor; in effect, that it was fortuitous, accidental. It was at least sufficient to put the employer on inquiry. If the employer was harmed by the inaccuracy he has the burden of showing it. Pardeick v. IronCity Engineering Co., 220 Mich. 653. There is no such showing. In these circumstances, the department, in treating the employer as having had sufficient notice of injury, must be sustained.

4. That the award of allowance per week, $14, is excessive. Plaintiff's wages were $55 a month and board. The only evidence we find of the total of this in money is the report of the employer giving the average weekly wages as $19.86. The maximum weekly allowance therefore is $11.92 per week. Section 10, pt. 2, Act No. 64, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 5440).

5. That the award for medical attention is erroneous in fact. There is evidence to support the action of the department and it is therefore conclusive.

The cause is remanded to the department for correction of the weekly allowance and the award otherwise is affirmed.

BIRD, C.J., and SHARPE, SNOW, STEERE, FELLOWS, WIEST, and McDONALD, JJ., concurred.