Vestal v. Therminsul Corp.

Plaintiffs appeal from the denial of their claim by the department of labor and industry. The only question raised in this appeal is whether the department erroneously found that the employer did not have "notice or knowledge of the injury." 2 Comp. Laws 1929, § 8434 (Stat. Ann. § 17.168).

Defendant Therminsul Corporation is a manufacturer of rock wool, the process requiring the melting of limestone by burning coke in a cupola 8 or 10 feet high. The molten rock is then treated with steam, which blows it into mineral wool. Considerable care is required in the firing of the cupola because the incomplete combustion of coke dust will generate deadly carbon monoxide gas, which travels 100 feet in less than four minutes.

On February 25, 1937, plaintiffs' decedent, Fred Vestal, with others, was working in defendant Therminsul Corporation's cupola room about 6 or 7 o'clock in the evening, when a light colored gas was observed coming out of the cupola door about 10 feet above the floor. Two of defendant's employes, Sleeman and Webster, who had been putting coke and slag into the cupola, were overcome by the gas to such an extent that immediate medical attention was necessary. Plaintiff's decedent assisted in attempts to resuscitate the gassed employees and some one asked him to go to his home, which was near-by, to get some whisky. His wife testified that he came in the back door, asked if there was any whisky in the house, and said: "Hand me the bottle quick; there are two men gassed at the plant." She stated he was hurrying and appeared to be pale. A short time after Vestal left his home, as his wife started for the grocery store, she found her husband in a stooped position by the sidewalk. He was rushed into the house, where he appeared to be faint and tried to vomit, and Dr. Barnabee was called. The doctor testified that he was called to attend Vestal between 7 and 8 o'clock on the evening in question; that he was practically unconscious, and four or five men were around trying to help him breathe.

Defendant's superintendent, Leonard Kuehn, testified that, while the company's physician, Dr. Koestner, was still working on the two men who had been overcome at the plant, he received a report that Vestal "had also been taken sick and was at home;" that he immediately went to the Vestal home and was told by Vestal that he was "sick to his stomach." When Dr. Barnabee arrived, Kuehn returned to the plant as there was nothing more he could do for Vestal. Defendant's night superintendent, Van Dyke, also testified as to the gassing of Sleeman and Webster, and that the morning after he was told by Vestal that he had been taken ill the same night the other two were gassed and that he "had to have help to get home," because "he was taken ill on his way to the house."

Vestal's attending physician called on him again the next day. He found Vestal's heart was still weak and that he was pale and coughing a great deal. He remained under Dr. Barnabee's care, but continued to grow worse, complaining of "that terrible cough all the way through." Later Dr. Banner also attended Vestal and fluid was taken from his lungs. He died on November 7, 1937. From February until October 2d he worked at defendant's plant whenever there was work to do.

The department found that relative to notice, the facts are similar to those presented in the recent case ofClifton v. Chrysler Corporation," 287 Mich. 87, and, on that basis, held that the testimony "relative to notice or knowledge was not sufficient to sustain plaintiff's action." The CliftonCase is based upon Gumtow v. Kalamazoo Motor Express, 266 Mich. 16 . In neither of these cases did the defendant corporation have knowledge of an accident, and the court held that mere knowledge of an illness did not convey notice or knowledge" of an accident. In the case now under consideration, the evidence is most compelling that the defendant corporation had "notice or knowledge" of the accident. Knowledge of Vestal's illness, following so closely and so immediately connected with knowledge of the escaping carbon monoxide gas and its effect on others in the same room, was sufficient "notice or knowledge of the injury" to satisfy the requirements of the statute. 2 Comp. Laws 1929, § 8434 (Stat. Ann. § 17.168).

The order of the department of labor and industry is vacated and the cause remanded. Costs to appellant.

BUTZEL, C.J., and SHARPE, POTTER, CHANDLER, and NORTH, JJ., concurred with BUSHNELL, J.