Gower v. Department of Conservation

Can we conclude as a matter of law that the department of conservation did not have the required notice when a finding was made by the department of labor and industry that such notice had been given?

We have held unequivocally that:

"The question of the giving of timely and sufficient notice is one of fact." LaPorte v. Kalamazoo Stove Furnace Co.,308 Mich. 687, 691.

In applying the statutory requirements regarding notice of the injury (2 Comp. Laws 1929, § 8431 et seq., as amended by Act No. 245, Pub. Acts 1943 [Comp. Laws Supp. 1945, § 8431, Stat. Ann. and Stat. Ann. 1946 Cum. Supp. § 17.165 et seq.]), we must at the same time remember that the legislature provided in part 2, § 18 of the workmen's compensation act (2 Comp. Laws 1929, § 8434, Stat. Ann. § 17.168), for such contingencies as are presented in the instant case. That section reads:

"A notice given under the provisions of this act shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place or cause of the injury, unless it is shown that it was the intention to mislead, and the employer, or the insurance company carrying such risk, or the commissioner of insurance, as the case may be, was in fact misled thereby. Want of such written notice shall not be a bar to proceedings under this act, if it is shown that the employer had notice or knowledge of the injury."

See Mauch v. Bennett Brown Lumber Co., 235 Mich. 496.

Nor may we in any event disturb an award of the department, based upon testimony as to the facts; the department's findings of fact as to notice of injury are conclusive when supported by evidence. Monk v. Charcoal Iron Co. of America, 246 Mich. 193; Hajduk v. Revere Copper Brass, Inc., 268 Mich. 220;Quimby v. Lennon Gravel Co., 270 Mich. 493; Badarak v.Ford Motor Co., 281 Mich. 53; and McIntyre v. Bohn Aluminum Brass Co., 285 Mich. 526.

It is difficult to read the testimony quoted in Mr. Justice SHARPE'S opinion without being impressed with the fact that Mrs. Gower apprised her husband's superior that Dr. Gower's death was in some manner connected with his employment. This testimony bears the indicia of truthfulness and fairness and contains, without any doubt, an accurate account of all the information that could have been furnished to the employer at the time. It would have been impossible for Mrs. Gower to give notice of an injury that would have been more definite in view of the first autopsy. After a second autopsy on August 25, 1945, it was discovered that the primary cause of the death of Dr. Gower was tularemia. The conclusion is inescapable that this rare disease was contracted by Dr. Gower on January 6, 1945, when, in the performance of his duties, he examined the liver of a diseased rabbit.

In the opinion, which proposes a contrary result, reliance is placed on Littleton v. Grand Trunk Railway Company, Inc.,276 Mich. 41; Maki v. S.J. Groves Sons, 279 Mich. 644; andClifton v. Chrysler Corporation, 287 Mich. 87.

In the Littleton Case the only notice claimed was a casual conversation between the claimant and a foreman, which conversation was denied by the latter. Although we accepted the finding of the department that there was such a conversation, we said:

It [the statute] requires more than a casual conversation in which the employee states that he is not feeling well and expresses his wonder whether it was caused by an injury, of which the details are lacking."

In the Maki Case an attempt was made to infer that a notice had been given, from the circumstances of the case. This was held to be improper, because there was no evidence in the sequence of events which rose to the dignity of notice.

In the Clifton Case there was nothing to prevent the employee from giving proper notice within the statutory period. However, there was no testimony in that record to sustain a determination that such notice had been given.

This Court discussed the sufficiency of the notice in a comparable case, saying in Nicholas v. St. Johns Table Co.,302 Mich. 503, 516:

"Plaintiff interviewed an official of defendant employer May 6, 1940, after his condition had been diagnosed by the physicians at Ann Arbor. Plaintiff asked this official whether he had any claim in the nature of compensation and he received the reply that he saw none available because he did not think there was the `stuff in the finishing room.' This official, though present at the hearing, did not take the stand. The reference to the `stuff in the finishing room' demonstrates that the official had knowledge of the fact that the plaintiff attributed his condition to a substance in the room in which he had worked, and, therefore, the defendant employer cannot successfully claim in this case, as claimed by the employer in Gumtow v. Kalamazoo Motor Express,266 Mich. 16, that, although informed of plaintiff's condition, the employer was not told that it arose out of and in the course of his employment."

Authorities regarding the requirements of the workmen's compensation law as to notice of injury are collected in 107 A.L.R. p. 815 et seq.

In the case of Consumers Company v. Industrial Commission,364 Ill. 145 (4 N.E. [2d] 34, 107 A.L.R. 811) the court observed the following:

"The record discloses that the widow talked to the employer about the possibility of accidental drowning, and this came as near to being a notice as it was possible for one person to give another under the circumstances. It may have been very defective and inaccurate as a notice — it was undoubtedly a mere conjecture — but the facts were as apparent to one of the parties as to the other, and the employer was in no way prejudiced by the defect or inaccuracy, no matter how great."

See, also, Duvall v. Ford Motor Co., 288 Mich. 348.

In the instant case, notice was given to decedent's superior within the statutory period, sufficient to put the employer upon inquiry. There is evidence to support the department's finding of fact that notice was given, and we are not at liberty to disturb an award based upon that factual finding. The award should be affirmed, with costs to appellees.

BUTZEL and REID, JJ., concurred with BUSHNELL, J.