258 N.W. 205 | Mich. | 1935
Lead Opinion
This is an appeal in the nature of certiorari from the department of labor and industry.
The only question is whether there is any evidence to sustain the award of the commission. To sustain that award, it was necessary there be evidence that *30 plaintiff was injured, and that the employer had notice thereof.
The proof shows plaintiff was hired as a foreman of a county wood job; paid by check, at a fixed wage, upon which he received the money, spending it as he pleased; that he was injured by falling in the woods, at which time something hit his eye; that he put some water in the eye, showed it to one of the workmen who said it was red. Plaintiff was working under Frank Duda. He attempted to call Duda by telephone the night of the injury, but he was not at home; but on Monday morning following, he went to Mr. Duda who gave him a county order to go to a doctor, which he did.
There is testimony to sustain the finding of the commission that plaintiff was injured. The important question is whether or not defendant had notice thereof.
Plaintiff went to Frank Duda for whom he worked. Duda gave him a county order to go to a doctor. There is no direct testimony plaintiff gave any specific notice to Duda that his injury grew out of or was incurred in the course of his employment. The department said: "We find no testimony in the record that would indicate that a proper notice was not given by the plaintiff to the defendant. * * * We therefore find that a notice was given."
The burden of proof was upon plaintiff. The department held substantially that upon the question of notice, the burden of proof was upon defendants. This is an erroneous legal conclusion and is subject to review. Stockley v. SchoolDistrict No. 1 of Portage Township,
It is for the department of labor and industry to determine, under correct principles of law, whether there is any evidence to sustain its finding, and not for this court.
Therefore, the case is reversed, without costs, and remanded to the department of labor and industry for reconsideration and determination under properly applicable rules of law.
NORTH, FEAD, and BUSHNELL, JJ., concurred with POTTER, C. J.
Addendum
Plaintiff was destitute and applied to defendant county poor commission for public charity relief. *32
The poor commission, for charitable purposes, had obtained timber tracts where public charges might procure fire wood and, in the administration of such purpose, had plaintiff mark limits to be observed by his fellow subjects of charity in their cutting of fire wood.
Plaintiff was a subject of public charity and not an employee of the county poor commission within the workmen's compensation law (2 Comp. Laws 1929, § 8407 et seq.).
The case is ruled by Vaivida v. City of Grand Rapids,
The award should be vacated, with costs.
NELSON SHARPE, BUTZEL, and EDWARD M. SHARPE, JJ., concurred with WIEST, J. *33