*1 Reposts. change plaintiffs to remove or failure cause of stairway. judgment costs defendant. to is J., 0. North, Dethmers, Boyles, not did J., concurred. JJ., Butzel, Biishnell, sit. v. VILLAGE OF MARCELLUS. MAILLAT Compensation Second-Injury — Contribution 1. Workmen’s of Limitations. Fund—Statute State, as trus- by Claim for contribution employee died thereof, filed more 6 months than tee limi- by compensable injury not barred 6-months compensation imposed claims tation workmen’s act (1) expressly not because such statute did provide State, application against per Butzel, “com-, Carr, JJ., (2) also such contribution was because pensation” limitation injury, for an which the 6-months expressly per Boyles, North, made applicable, Deth- 412.15). 412.8a, JJ. mers, Butzel, Caer, §§ to Show Cause—Contribution to Second- 2. Order Same—Second Testimony—Rehearing. Injury Fund—Additional why should Second order to show cause treated properly not contribute to the fund was to take com- as an order missioner, pursuant to a rule of the workmen’s commission, rehearing, rather than a not author- 412.8a; Compensation ized Workmen’s Commission 9). Rule No References Points Headnotes admissibility [3,4] report, Jur, employer’s 58 Am As see Compensation, 447, 460. Workmen’s §§ oe op Injury. Same—Report employer’s report An workmen’s commis- sion of an “prima to an establishes ease” to the material facts stated therein. *2 Same—Second-Injury Eund—Dependents—Report—Evidence. 4. State’s claim for contribution second-injury fund reason injuries of death of defendant’s arising out of and in employment course of having without left de- pendents supported by was employer’s report and evidence adduced at hearing on second order to why show cause con- tribution should not (CL 1948, 412.8a). J.,C. and Bushnell JJ., dissenting. and Sharpe,

Appeal Compensation from Workmen’s Commis- sion. (Docket Submitted June 7, 1950. No. 23, 44,671.) Calendar No. January Decided 1951. 8, why Order to show cause defendants, Michigan Liability Marcellus Company, Mutual should not contribute to fund. Award requiring appeal. contribution. Defendants Af- firmed.

Stephen Attorney Roth, General, Edmund E. Shepherd, J, Solicitor Daniel General, O’JSara, Attorney Assistant General, State Treasurer. Carey Cooper, L. <7. and Ceo. J. for defendants. (dissenting). Henry E. Maillat, Bushnell, 75-year-old night as a watchman widower, worked village p. for 10 m. Marcellus. About 1947, on December he found 13, was unconscious Company. front of the Marcellus Lumber There lying. ice was was taken to the on the cement walk where he He hospital died. a few autopsy hours. An disclosed a fracture at the base hemorrhage. of the skull and a massive cerebral village report compen- filed a Defendant stating: commission on December 1947, sation 17, presumed it witnesses, it No “How did occur? steps fell off the of the officeentrance he backwards striking Lumber head of the Marcellus cement walk.” on supplemental February report, A dated there stated were no why cause defendants should

An order show pay into the $1,000 (1)]) Cum 412.8a September 1948. on issued the commission before commissioner occurred Only ap- the defendants November require- peared. They that the 6-months claimed filing had not been observed ment in the claim prove there were the burden was on State to *3 dependents, of a occurrence deputy put re- The commissioner accident. relying making ports these as and, in evidence pay. prima De- case, ordered defendants appealed from full commission this fendants award. pending, appeal order to a second

While by the commission on March issued show cause was matter was claimed the res 1949. Defendants deputy judicata, treated it commissioner as but the testimony, directing rather than a rehear- ing. M. Dr. H. Adams, He then took the family physician attended him deceased who night Dr. death. testified that he the had found Mail!at unconscious with Adams

a fractured skull hemorrhage, had that he no medi- and cerebral history fainting to indicate a heart attack or cal hearing spell. After commissioner did not enter an additional award. v. oe September original

On on the basis of the testimony, and the additional the commis- deputy. sion affirmed the award of the appeal claiming Defendants obtained leave to the that order first to show cause was issued too late and

plaintiff proof. had not sustained the burden of compensation against employer A claim*for an must he filed after the months (Stat death. CL 412.15 17.165). requirement timely The of a claim is jurisdictional precedent and a condition to the main- tenance of an action. LaRosa Ford Co., v. Motor 270 Mich 365,and La Duke v. Co., Consumers Power 299 Mich 625. argued,

It is however, that the limitation does not operate against the State. general recognize

The statutes of limitation propriety placing time on the limitations State personal both to real actions. CL 1948, (Stat Ann CL (Stat 27.620). Unemployment Compensa- See tion Vivian, Commission v. 318 Mich 598. beneficiary only

The State is not hut the cus- second-injury- todian of the fund. It acts a col- capacity lection for those entitled under the statute payments from this fund. The initial action against employer originates an with an order to show the workmen’s com- cause Taylor (Criss mission Produce 457) payments and the the fund are also its given protection order. time equally money limitations is where *4 paid go first and then to the in- will to the fund directly. the individual Here, as to dividual, period claim was the 6-month instituted recovery In of the fore- cannot be sustained. view

going unnecessary questions it is to discuss other raised.

The award should vacated, hut without costs. J., C. J., concurred with BTJSH- Sharpe, NELL, (for affirmance). I do not concur with Mr. Justice in reversal. Statutes of Btjshnell applicable limitations are to actions the State expressly provide, when those statutes so as CL (Stat § § 1948, 609.11 Ann CL (Stat 27.620); express provi- hut the legis- sion therefor those sections evidences recognition lative of the rule that limi- statutes of apply tations do not to the State the absence of express provision an this is the rule 24 Am therein to that effect. That

was held Crane v. 21 Mich Reeder, (4 Rep 430); though and it was held, so even brought the action State as the trustee express anof in State v. Venice America trust, Land 160 Mich See, also, Limita- CJS, tion of and 1 Actions, Wood on Limitations (4th ed) making 157, 52. The limitation claims period within 6 months after death 17.165]) by express language statute- proceedings either in to the State

to enforce or otherwise. treat cause,

Defendants the second order to show opinion, an or- Btjshnell’s mentioned Justice as Fitzpatrick rehearing der for and cite such cases as Corp., Division Motors Olds General authority proposition the com- for the may rehearings. not order It seems me mission deputy commis- under the circumstances taking properly the order as one for treated sioner *5 375 v. of 9 testimony,- permissible Rule No compensa- practice of the rules workmen’s of tion commission. say plaintiff failed to sustain

Defendants that dependents showing of burden of the nonexistence obligation prerequisite to make to the deceased, of fund. The “Supplemental village Report filed of the commission Injury,” the follow- contained Fatal ing: ages, relationship deceased, extent “Names, dependents dependency, of of of all address employee: numerous occa- None.” On deceased report employer’s we held that the sions have department prima case” as “a establishes Whittles the berger, facts stated therein. Reck v. material (Ann 5 NCCA 660; Mich Cas 1916C Fitzgerald 917); Co., v. 187 Mich Lozier Motor Wood-Temple McCartney Hec Co., 217 Mich 505; v. Heating Plumbing 226 Mich tor & v. Cadillac Co., 227 Mich 258 496; Derleth Roach & v. Seeber (36 472); Kelly ALR Ford Motor Co., sup prima facie case Since the thus any port evidence to of was not met award contrary, that it follows the commission’s dependents no is sustained fact that deceased left seemingly contrary holding the record. The majority L in Killion v. E & Trans of this Court port predicated fact Co., 321 Mich was the employ dependents that the statement report effect, er’s been with in that case had, deputy prior com drawn, before employer’s alleging by answer that missioner, did leave The Killion deceased respect distinguishable is in from the in Case point case not in here. stant and is that reason Finally, urge plaintiff did not sus defendants showing tain the burden deceased suf n resulting personal injury fered i death which employment. arose ont of and in the course of his This contention assumption is based defendants’ commis taken before the *6 sioner the order may second show cause be the considered, support thus leaving nothing the commission’s in this other than respect statement to the commission employer’s report that “It he fell backwards,” cetera,, et presumed all In set forth in opinion. Justice Bushnell’s view of the fact it was the commis proper sion to remand the matter commission er for testimony of further in accord with said taking Rule No taken occasion is- 9, properly a evidence part Competent the record. adduced at time the commission’s find supports fact injury that deceased sustained ing personal in in death out of and resulting arising course of his employment. award is costs to plaintiff. JJ., concurred

Butzel, with Dethmers,, (concurring affirmance). While I North, am Mr. accord with result reached Justice- I of the opinion am that our decision- might also be bottomed on which seems to ground me clearly tenable and which is herein noted.

The 6-months limitation [Stat which Mr. Supp 17.165]) Justice- and on which relies, cites he has been in Bushnell many years. the statute for Its material provisions were in the workmen’s compensation origi- law as PA Ex nally (1st enacted 1912. See Sess), No This statute pt (CL 1915, 5445). pro- limitation of only vides for a time “pro- within which ceedings injury act At it shall be maintained.” time en- was oe Marcellus. to an employee only payable acted or to his injury, who had suffered It death. of his resulting event dependents was sought to them when only in the statute as embodied limitation applied the legis- later than 30 years More the legislature. an additional enacted No PAby lature Cum 412.8a section (1)]), provides: the employee injury “If death results of this the meaning dependents leave shall paid or cause to be shall pay act, paid amount $1,000, any less sum lifetime for the as compensation during into sum shall paid which resulted death. Such to be held as of this State treasury the State solely pay- applied *7 in of hereinafter compensation ment prescribed of in- the time has employee this If an at section. form the loss of permanent jury disability the and at eye of a or foot or or leg hand or arm dis- incurs further injury permanent time of such or the form of the loss of hand or arm ability in to totally foot be deemed be eye, or or he shall leg shall be from permanently paid, and disabled and in this for section, compensation the funds provided total permanent disability subtracting by amount of received for The of compensation both such losses. of shall the conclusion begin section at for dis- made the second payments permanent the or- ability. Such shall be payments commission.” der section, under the above to State “to Payments, not second-injury payments fund” are held as a be payments are into they “compensationInstead are not Such payments held the State. by fund character or extent of amount by measured of his earn- or the amount injury by the employee’s are which essential ings, awarding compensation. Instead into the State fund are in an payments fixed arbitrary amount legislature, pay- and such are not ments by “proceedings obtained for com- pensation injury” for an is statutory pro- ceedings section the work- provided 15, part men’s compensation law to which (CL 1948, 412.15) the 6-months limitation in that section The applies. section above quoted, which was added the statute for be providing held by the contains no State reference the 6- months limitation. It does not the time provide within which the State shall such apply payments or a time within which must make the employers find no payments. We or justification'for.implying into that reading section the 6-months limitation. therefore We conclude the limitation section the workmen’s part law statutory into “a provision 412.8a) payments fund” to held the State. I am in accord with Justice Dethmers’ conclusion it was to take additional proper be- there commissioner, competent support evidence commission’s death resulted that he left no award is to appellee. costs JJ., con- Boyles, Dethmers, Btttzel, curred with North,