298 N.W. 390 | Mich. | 1941
Appellant National Casualty Company was the insurer of Chisholm Construction Company under the workmen's compensation act (2 Comp. Laws 1929, § 8407 et seq. [Stat. Ann. § 17.141 etseq.]). Chisholm Construction Company, one of the defendants, was a copartnership in which Archie Chisholm, plaintiff, was a copartner with his brother John Chisholm, who died before the hearing of the case. Premiums paid to appellant were based upon the payroll of the copartnership, which included the salary of $200 a month paid to plaintiff as managing partner. John Chisholm, the other partner, took no active part in the operation of the business, and it appears that he was living with his sister in Duluth, Minnesota, part of the time. At the time of plaintiff's injury, John did nothing whatsoever on the job. After the injury, he signed checks because plaintiff so instructed him. He was not familiar with the job because he was in Duluth while plaintiff was at the job in Ironwood. Plaintiff testified that he located the jobs, did the *27 running around, and was paid $200 a month salary besides his share of the profits.
The copartnership was erecting a building for a publishing company at Ironwood, Michigan. On November 13, 1936, plaintiff, who lived in Bessemer, which is seven miles east of Ironwood, remained on the job until about 9:30 in the evening. He took one of the workmen home to Bessemer and then re-called that he had forgotten to turn off the lights in the building at Ironwood and returned for that purpose. Plaintiff went next to Hurley, Wisconsin, which is just across the river from Ironwood, to see a brick salesman in regard to freight charges on brick; then he returned to see how the floors were setting at the building in Ironwood, and left the building for his home about 12:10 on the morning of the 14th of November, 1936. The next day was payday and plaintiff claims he was going to his home to make out the payroll. His car went off the road between Ironwood and Bessemer and while pushing the car he fell and fractured both bones in his right leg. He remained in the hospital until January 10, 1937, and his physician discharged him on February 28, 1937. He claims to be disabled because of a permanent arthritic condition resulting from the accident.
Following the accident, the publisher of the newspaper together with plaintiff supervised the work which was completed in July, 1937. Plaintiff testified that his salary has continued since the accident but that he has not collected it although he has a valid claim for it against the copartnership. The deputy commissioner awarded plaintiff medical and hospital expenses but no other amounts for compensation. The department, however, modified the award and allowed plaintiff compensation at $18 a week for total disability from the date of the accident *28 to February 28, 1937, and from that time on at the rate of $15.38 per week until further order. Defendant casualty company appeals.
Many questions are raised on appeal. It is admitted that no claim for compensation was filed for almost three years. Appellant contends that the failure to make a claim within the statutory period of six months is fatal to claimant's right of recovery. It also asseverates that the accident did not arise out of or in the course of employment, as appellant was going to his own home for the night, and that in making out the payroll plaintiff was acting in a proprietary capacity. Further claim was made that inasmuch as plaintiff asserts a valid claim for his entire salary during the time that he was laid up, he cannot also recover compensation. Further objections were made to the fact that material testimony should not have been admitted as it was equally within the knowledge of plaintiff's brother who is deceased.* It is unnecessary to discuss all of these questions and the others that are raised, as we believe a single question is decisive of the case.
Under 2 Comp. Laws 1929, § 8413, as amended by Act No. 58, Pub. Acts 1931 (Comp. Laws Supp. 1935, § 8413, Stat. Ann. § 17.147), the working members of a partnership, who receive wages irrespective of profits, are entitled to compensation.Gallie v. Detroit Auto Accessory Co.,
"The applicable principle is fundamental and unquestioned. 'He who prevents a thing from being done may not avail himself of the nonperformance *30
which he has himself occasioned, for the law says to him in effect "this is your own act, and therefore you are not damnified." ' Dolan v. Rodgers,
In Dulberg v. Equitable Life Assurance Society of the UnitedStates,
It is true that it is stated in Thurston v. Detroit Asphalt Paving Co.,
In the present case plaintiff cannot take advantage of his own wrong or neglect to create a waiver or estoppel in his own favor.
The award of the department is reversed, with costs to appellant.
SHARPE, C.J., and BUSHNELL, BOYLES, CHANDLER, NORTH, and WIEST, JJ., concurred. McALLISTER, J., took no part in this decision.