Morley v. Standish Creamery Co.

Kelly, J.

(dissenting). I dissent from Justice Sharpe’s opinion which states that the award of the workmen’s compensation commission should he vacated because plaintiff has failed to show that he made any claim for compensation upon his employer or the insurance company within the statutory period.

The following facts are clearly established in the record:

1. That on October 25,1950, plaintiff was employed by defendant Standish Creamery Company and left his employment to go to a doctor’s office for a medical examination; that as a result of said examination he followed the instructions of the doctor and returned to his place of employment and informed the company manager that he had a double hernia.

2. That on October 30, 1950, the manager of the defendant company prepared and signed the basic report of compensable injury, and filed same with the workmen’s compensation commission, in which report the manager stated: “On October 25, 1950 employee knew for sure that he had a double hernia. Last day worked, October 26, 1950. * * * Mr. Morley went to see Dr. M. K. Dolbee on October 25, 1950 and was informed he had a double hernia.”

3. On December 5, 1950, defendant State accident fund, without being contacted in any way by plaintiff, sent an employee to the farm where plaintiff resided and questioned plaintiff in regard to his claimed injury and double hernia.

4. That on December 14, 1950, the State accident fund, by its superintendent of claims, wrote a letter to the plaintiff, wherein it referred to the visit its investigator had made and concluded by stating that it did not “feel that the Michigan workmen’s compensation law provides you any benefits for the hernia which you claim to have sustained while in the employ of the Standish Creamery Company.”

“Notice to an employer of an injury to an employee may be oral or written and must be of such a nature as reasonably to inform employer that employee has sustained a compensable accident, since the purpose of the notice is to give employer an opportunity to examine into the alleged accident while the facts are accessible.” Henderson v. Consumers Power Co. (syllabus), 301 Mich 564.

“Notice to foreman of accidental injury sustained by an employee constituted notice thereof to his employer.” Fidelity & Casualty Co. v. Vantaggi (syllabus), 309 Mich 633.

“Letters from an employer and its insurer properly in the files of the department * * * were properly considered by the department in making an award.” Basner v. Defoe Shipbuilding Co., 319 Mich 67, 72.

The compensation commission may draw reasonable inferences from established facts. See Nicholas v. St. Johns Table Co., 302 Mich 503.

The question of giving notice of injury under the workmen’s compensation act is one of fact for the commission to determine and will be sustained if the inferences drawn are properly deductible from the testimony. Amamotto v. J. Kozloff Fish Co., 317 Mich 641.

The record in the instant case establishes beyond doubt that the manager of the defendant company was informed by plaintiff that the doctor had examined him and had instructed him to report to the company that he had a double hernia which precluded him from continuing with his work; that said manager not only accepted such report as a claim of compensable injury but set forth, under his signature, these facts to the commission.

The facts as set forth in the record leave but one inference, and that is that the defendant company reported all of this to the insuring defendant company causing it not only to make an investigation of plaintiff’s claim, but also to report to plaintiff on his claim for compensable injury. All this occurred within 2 months from the date of claimed disablement and I agree with the commission’s statement in its opinion that: “The only possible inference from those facts is that plaintiff made a demand for compensation within that period.”

The award of the commission should be affirmed.

Butzel, C. J., and Bushnell, J., concurred with Kelly, J.