Autio v. Proksch Construction Co.

141 N.W.2d 81, 377 Mich. 517, 1966 Mich. LEXIS 113

• Court: Michigan Supreme Court
• Decided: April 5, 1966
• Docket: Calendar 9, Docket 51,042
• Status: Published

Opinions

Souris, J.

The workmen’s compensation act¹ of this State constitutes a discrete enclave within the law.

“The workmen’s compensation law is a departure, by statute, from the common law, and its procedure provisions speak all intended upon the subject. Rights, remedies, and procedure thereunder are such and such only as the statute provides. If the statute is short of what it should contain in order to prevent injustice, the defects must be cured by future legislation and not by judicial pronouncement.” Luyk v. Hertel (1928), 242 Mich 445, 447.

The act provides for limitational periods within which claims must be brought and also provides that the running of such limitational periods shall be tolled until the employer, having timely notice of the employee’s injury, files a report of the injury with the workmen’s compensation department within a prescribed period.² Ordinarily a claim for compensation must be made within six months after the occurrence of the injury, but in the event of physical or mental incapacity to make a claim, within six months after regaining capacity. A three-year limitational period is provided where the “actual injury, disability, or incapacity” develops more than six months after the injury of which the employer was given notice. Consistent with the principle enunciated in Luyk, supra, and the time limitations contained in the act, the Court has held that the general statute of limitations³ has no application to claims brought under the act. Bankers Trust Co. of Detroit v. Tatti (1932), 258 Mich 357, and Jelusich v. Wisconsin Land & Lumber Co. (1934), 267 Mich 313, 319.

Notwithstanding its nominal acknowledgment that the general statute of limitations is not applicable to workmen’s compensation claims, this Court in Hajduk v. Revere Copper & Brass, Inc. (1934), 268 Mich 220, nevertheless imposed judicially, by analogy, a six-year limitational period upon such claims. In that ease plaintiff employee lost the sight of his left eye in October, 1922, as the result of an industrial accident. The department found that plaintiff had given defendant employer timely notice of the injury, but the latter nonetheless had failed to file a report of compensable injury. In May, 1933, a year after his discharge by defendant, plaintiff filed a claim with the department of labor and industry and was awarded compensation for loss of his eye. Defendant argued that the claim was barred by the general statute of limitations.

The Court said (p 223):

“While the general statute of limitations has no application in the instant case because th¿ department of labor and industry is not a court and a proceeding before it is not an action, yet we can conceive of no reason why there should not be a limit of time within which a proceeding for compensation should be commenced. That limit of time must be a reasonable one, which by analogy to the statute of limitations will be deemed to be six years. Cruse v. Chicago, R. I., & P. R. Co., 138 Kan 117 (23 P2d 471).”

Earlier in its opinion the Court had noted the above cited provision of the act which, in fact, specified “a limit of time within which a proceeding for compensation should be commenced.” That limit is referred to in the act as “the statute of limitations”, a reference the Hajduk Court expressly found meant (p 223) “the limitation within the act and not the general statute of limitations”. Moreover, the statute also expressly provided that that time limitation for claiming compensation “shall not run against the claim of the injured employee or his dependents, or in favor of either said employer or his insurer, until a report of said accident shall have been filed”⁴ with the department by the employer in all cases in which the employer has been given timely notice or has knowledge of the happening of the accident. Thus, the legislature not only provided for a time limitation within which a proceeding for compensation must be commenced, a time limitation recognized by the Court in Hajduk, but, also, it provided for the extension of such time limitation so long as an employer with timely notice or knowledge of the happening of the accident failed, neglected, or refused to report the accident to the department.

Yet, the Court in Hajduk imposed upon compensation claims a limitational period in addition to that expressly provided by the act and made it absolute in the sense that the judicially imposed limitational period was not tolled by the employer’s failure to file a report of the accident with the department or, apparently, for any other reason. The effect of what the Court did in Hajduk was to write into the act a limitation upon entitlement to compensation which the legislature, by its tolling provision, had manifested expressly an intention not to impose. If what the Court did it did “to prevent injustice”, a purpose the language of the Court’s opinion seems clearly to indicate it had in mind, the Court must have forgotten what it had written earlier in Luyk v. Hertel, supra, about the workmen’s compensation law and the respective roles of the legislature and the judiciary in connection therewith.

A majority of the Wisconsin supreme court imposed a similar limitation judicially upon the Wisconsin compensation law in Federal Rubber Company v. Industrial Commission of Wisconsin (1924), 185 Wis 299 (201 NW 261, 40 ALR 491). The persuasive dissent in that case (p 303) is applicable to Hajduk:

“The old law of master and servant was scrapped as social and economic obsolescence and was supplanted by a complete and comprehensive scheme for the compensation of industrial accidents. It has not been customary to resort to the old law of master and servant for analogies to aid in the construction of the workmen’s compensation act because that act is based upon principles entirely incompatible with the former law. The framers of the workmen’s compensation act expressly provided for two limitations. The logical inference is that they did not intend to provide any further limitations.

“I cannot but regard the decision in this case as a judicial invasion of the legislative field, and I must dissent.”

If the act construed in Hajduk had been ambiguous or if it had omitted reference to a limitational period within which claims for compensation were to be filed, the result reached in Hajduk might have been justifiable in the sense that it would have been an appropriate exercise of the judicial power to construe statutory provisions, but in the face of such clear expression of legislative purpose, what the Court did in Hajduk was completely unjustified. The Court should have approached its task then as it did 16 years earlier when it construed the workmen’s compensation law to deny the claim of an injured workman in Cooke v. Holland Furnace Co. (1918), 200 Mich 192. In the Cooke Case the Court said (pp 195, 196):

“We must approach this question, having full regard for the fact that under the division of powers found in the Constitution, our duty is not to enact but to expound the law, not to legislate but to construe legislation; to apply the law as we find it, to maintain its integrity as it has been written by a co-ordinate branch of the State government. If the law as written works hardships in a special class of cases the remedy lies with the branch of the government charged with the duty of enacting laws. If one does not protect himself and his rights under the law as written it is his misfortune, and this Court should not, by judicial legislation, for the purpose of relieving that misfortune, write into the statute a provision that the legislature has not seen fit to enact.”

The Hajcluk Court erred not only in its invasion of the legislature’s domain, but it erred also by citing as authority for its imposition, by analogy to the general statute of limitations, of a six-year limitational period within which claims for compensation must be filed, the case of Cruse v. Chicago, R. I. & P. R. Co. (1933), 138 Kan 117 (23 P2d 471). That case is not authority for what our Court did in Hajcluk. The Kansas workmen’s compensation law referred to a limitational period within which proceedings on a claim had to be begun but, unlike our own workmen’s compensation act, the Kansas law neglected to define that period. Thus, there was an ambiguity in the Kansas law which it was appropriate for the Kansas supreme court to clarify by judicial construction and, under those circumstances, there was justification for the Kansas court’s reference to Kansas’ general statute of limitations for the purpose of defining that period. No such justification, however, existed for this Court’s action in Eajduk, the legislature having provided expressly not only for the linxitational period but, also, for its tolling.

Unfortunately, Eajduk has been followed subsequently in a number of cases. While it is impossible to tell from the Court’s opinion in Eajduk whether the Court then intended its judicially imposed limitational period to be applied to bar all compensation claims made after expiration of six years following the injury or disablement or only to bar compensation benefits which, had earlier claim been made, would have been payable prior to the six-year period preceding filing of the claim, Eajduk has been’applied to cases presenting both situations. See, for example, Henry v. Ford Motor Co. (1935), 273 Mich 323, where the Court denied any compensation to plaintiff, who was injured in May, 1927, with resultant total disability in May, 1928, plaintiff not having filed a claim for compensation until May, 1934; and Sweet v. Eddy Paper Corp. (1942), 303 Mich 492, where the Court modified the department’s award of benefits on a petition for further compensation by limiting the award to cover a period beginning no earlier than six years prior to the date of filing of the petition.⁵

It has been suggested that, because the legislature has reenacted the limitational section of the act after Hajduh was decided, without specifically disavowing the judicially imposed six-year limitational period, see PA 1943, No 245, and PA 1954, No 175, we are now precluded by the doctrine of legislative acquiescence from correcting the errors made by this Court in Hajduh. My views concerning the unsoundness of this doctrine were expressed in Halfacre v. Paragon Bridge & Steel Co. (1962), 368 Mich 366, and I here reaffirm those views finding them applicable to the errors committed in Hajduh.⁶ I would overrule Hajduh and those cases, above cited, which have relied upon Hajduh insofar as they stand for the proposition that compensation claims not otherwise barred by the provisions of our workmen’s compensation law are barred if not filed witbin six years of the date of injury or disablement or for tbe proposition that benefits wbicb otherwise would have been payable had earlier claim been made are barred to the extent the benefits are for periods of disablement prior to six years from the date claim therefor was filed.

But it is not enough in this case simply to refer to my previously expressed views of the unsoundness of the doctrine of legislative acquiescence. Mr. Justice Black recently has embarked upon a course of selective invocation of the doctrine in its most extreme form. He does so yet again in this case of Autio. The doctrine, a pernicious evil designed to relieve a court of its duty of self-correction, has been examined and rejected by this Court before, but its current resurrection demands we perform the task once more lest our silence be construed as signifying its unanswerable validity. In the process, we shall compare Justice Black’s present writing with that which he signed without apparent reservation in Van Dorpel v. Haven-Busch Company (1957), 350 Mich 135, and which he reindorsed in 1960 in Wilson v. Doehler-Jarvis Division of National Lead Company, 358 Mich 510, 514.

Justice Black now shrinks from what he characterizes as “retroactively effective overrulements of long standing, steadily accepted and unanimously mature interpretations and applications [of statutes]”, but in the Van Dorpel Case he shared the duty of forthright, and retroactively effective, overrulement of prior judicial errors and joined, as well, in the forceful rejection of the doctrine of “legislative acquiescence” as a bar thereto. In that case the Court had before it for consideration sections 9 and 10 of part 2 of the workmen’s compensation act.⁷ Appellant company claimed that the appeal board had wrongly applied section 10 in that, after payment of compensation for the period allowed under section 10 for specific loss of fingers and a leg, the board awarded further compensation for total disability under section 9. This Court referred to no less than five unanimous decisions which supported appellant’s contention that the latter award was erroneous, the decisions ranging in date from 1914 to 1948.

The Court focused its attention upon one decision which it regarded as particularly in point, Curtis v. Hayes Wheel Company (1920), 211 Mich 260. Here are portions of the opinion subscribed by Jus-tice Black:

■ “In his conclusion the appellant argues forcefully and at length that legislative silence and inaction for 37 years after the Curtis Case amounts to a tacit recognition of its soundness by which we must irrevocably be bound. Now this beguiling doctrine of legislative assent by silence possesses a certain undeniable logic and charm. Nor are we oblivious to the flattery implicit therein; double flattery, in fact; flattery both to the profound learning and wisdom of the particular supreme court which has spoken* and flattery to a presumably alert and eagerly responsive State legislature. ’ One pictures the legislators of our various States periodically clamoring and elbowing each other in their zeal to get at the pearls of wisdom embalmed in the latest decisions and advance sheets of their ¡respective supreme courts— and thenceforth indicating their unbounded approval by a vast and permanent silence.

“Yet there are several dark shadows in this picture. For one, it suggests a legislative passion for reading and heeding the decisions of our supreme courts which we suspect may he scarcely borne out by the facts. For another, pushed too far such a doctrine suggests the interesting proposition that it is the legislatures which have now become the ultimate courts of last resort in our various States; that if they delay long enough to correct our errors those errors thus become both respectable and immutably frozen'; and, finally, the larger and more dismal corollary that if enough people persist long enough in ignoring an injustice it thereby becomes just. We reject as both un-Christian and legally unsound the hopeless doctrine that this Court is shackled and helpless to redeem itself from its own original sin, however or by whomever long condoned.” 350 Mich 135, 145, 146.

It is interesting to note that sections 9 and 10 had been jointly or severally the subject of legislative action nine times in the interval between the Curtis and Van Dorpel decisions,⁸ and as the Court observed in Van Dorpel (p 137), “Despite occasional amendments to both sections, the basic design of each hás remained substantially unchanged.” Surely such evidence of “legislative acquiescence” in five' unanimous interpretive decisions should have bound Justice Black in Van Dorpel, as he alleged himself to be bound in the more recent case of Mosier v. Carney (1965), 376 Mich 532, 589-591, and now alleges himself to be bound in this case of Autio, although, with persistent inconsistency, he is willing to “legislate” by overruling “unanimously mature” Hajdult and its progeny, but only prospectively.

Justice Black also now accuses this Court thusly:

“Even a legislature could not, consistent with constitutional guaranties, do what the Court has continued to do in 1965, and does now in 1966, that is, destroy defensive rights of substance which, by law, had become vested long before the date of the legislative attempt.”

Compare the above with what Justice Black embraced in Van Dorpel (pp 146-148):

“Courts throughout the land have long split over this doctrine of legislative acquiescence by silence. The usual arguments for recognizing it are that it gives stability and sureness to the law; that ‘rights’ thus acquired can thus only be disturbed at regular and predictable intervals by but one branch of the government, the legislative; and, finally, that to disregard the doctrine amounts to judicial legislating. Now we recognize that a court should not lightly overrule an interpretation of a statute that has been the law for 37 years, but we also see little justice or utility in continuing to give stability or sureness to an unfortunate rule of law; nor do we understand that employers or their insurance carriers have gained any vested ‘rights’ in the interpretation of this statute; nor do we think that the reinterpretation of a statute in the light of long experience with an unfortunate interpretation constitutes judicial legislating. (Emphasis added.)

“This case involves an interpretation of a statute which is silent on the precise issue involved. This Court 37 years ago decided what it thought the correct interpretation should be. We happen to disagree with that old interpretation and wish to make a new interpretation, for the reasons herein stated. It is suggested that we should not do this because, whether the original interpretation was right or wrong, inaction by the legislature since it was handed down constitutes a sort of informal post-enactment declaration of legislative assent thereto possessing the binding effect of law; and that any new and variant interpretation here and now would on that account constitute ‘judicial legislation.’

“To our mind the doctrine implicit in this kind of reasoning constitutes a surrender of the judicial function to a legislative body. In the final analysis the objection may fairly be stated thus: Our Court interprets a statute; whether right or wrong our decision henceforth becomes judicially immutable and we are powerless to change it; there is only 1 way it can be changed; if we are wrong we must wait for the legislature to tell us so; if by its long-silence and inaction the legislature does not speak out and tell us we are wrong then it has perforce by the same token told us we are right; in any case this Court is forever fettered and powerless to reinterpret the statute in question. We have instead delegated that function to the legislature. This curious doctrine can be boiled down even more: right or wrong in the Curtis Case, we are helpless to change it.

“Such a doctrine is to squarely place the legislature in the position of a super supreme court. We also consider it an abdication of judicial responsibility. We reject such a doctrine flatly along with the sort of mechanistic thinking- that can arrive at such an ironic impasse. This doctrine has irreverently been called the ‘one shot’ theory of legislative interpretation. We ourselves brand it a Pip-Van-Winkle doctrine of judicial stagnation and inertia. We happen strongly to disagree with it and in this we are not alone.”

Justice Black currently inveighs against “judicial legislation”, yet in Van Dorpel (p 153) he agreed completely with the following, which describes the situation now facing us with regard to the “rightful damnation of the Court’s 32-year-old error [in Hajduk]”:

“A little sense of proportion and realism in this area might not be amiss. The plain fact is that courts of last resort everywhere constantly engage in a form of ‘judicial legislating’ when they are confronted—as they so often are—by statutory or other provisions of ambiguous or uncertain meaning. Such judicial interpretations often in effect add words to a statute. Must we act at our peril that we might possibly we wrong? Some judges solemnly declare that we must. Yet far from being the doctrine of humility and keeping our places that they would have it appear, is not this essentially to preach the gospel of judicial infallibility? Scarcely a term of this Court passes that all of us are not obliged to interpret unclear statutes. Occasionally we must reinterpret them. It is one of our primary functions ; that’s what we are here for. It is only when a judge ignores or flies in the face of a positive and unambiguous statutory enactment that he may justly be accused of judicial legislating, in the bad sense. That is not our case.”⁹

But our review of Justice Black’s views need not be confined to Van Dorpel. Consider Linski v. Employment Security Commission (1959), 358 Mich 239. Earlier, in 1955, in Cassar v. Employment Security Commission, 343 Mich 380, seven Justices of this Court, as against one dissenter, had interpreted section 29 of the employment security act,¹⁰ dealing with disqualification for unemployment compensation benefits, as barring from benefits employees who were discharged after conceitedly ceasing work in violation of a labor contract. In Linski, a majority of five, including Justice Black, voted to overrule Cassar and substitute a new interpretation of the statutory language for the one adopted therein. I note that in his present opinion Justice Black emphasizes the unanimity of erroneous decisions in which the legislature allegedly has acquiesced, as one of the reasons giving rise to his asserted abhorrence from overruling them. See, also, his separate opinion in Halfacre v. Paragon Bridge & Steel Company (1962), 368 Mich 366, 387. It would seem,, however, that when, in the face of a vigorous dissent to a court’s interpretation of a statute, the legislature takes no action to make the statute mean what the dissenter said it meant, logically, it should follow that the legislature is applauding and approving the interpretation given to the statutory language by the majority. Viewed at all realistically, it is much more likely that a decision to which there is a dissent would come to legislative attention than would one which is pacifically unanimous. Thus, a dissenting opinion in a case involving an erroneous statutory interpretation should reinforce one’s inhibition against its later overrulement which arises from the doctrine of “legislative acquiescence”, for the legislature has had the error pointed out to it and nonetheless has declined to act. To those not purblindly devoted to that doctrine, however, the dissent marks out judicial error, hopefully, for future judicial correction.

Applying the doctrine of “legislative acquiescence” logically and realistically to the cited decisions of Cassar and Linski, it should have followed that the legislature had approved the interpretation put upon section 29. Cassar was decided on October 3, 1955, over the 16-page dissent of Mr. Justice Talbot Smith. In Knight-Morley Corporation v. Employment Security Commission, 350 Mich 397, decided November 26, 1957, Justice Smith criticized the Cassar doctrine, in the course of a dissenting opinion joined by three other Justices, including Justice Black. In Peaden v. Employment Security Commission, 355 Mich 613, decided April 13, 1959, Justice Smith again criticized Cassar, this time being joined by two other Justices, but not including Justice Black. And, finally, in Linski, supra, on November 25, 1959, Cassar was overruled notwithstanding the legislature’s quite obvious acquiescence therein.

During the interval between the decision in Cassar and its overrulement by Linshi, the legislature had legislated with regard to the employment security act (although not with regard to the specific section involved in those cases) four times, by PA 1957, No 287, adopted June 13,1957; PA 1957, No 311, adopted June 21, 1957; PA 1958, No 230, adopted June 13, 1958; and PA 1959, No 270, adopted October 30, 1959. When the legislature thus acted, according to the theory of the acquiescers, it had before it the Cassar opinions, in which seven Justices had interpreted section 29 to bar claimants from benefits and in which one Justice had interpreted the same language not to bar claimants; the Knight-Morley opinions, in which the judicial division became four to four; and the Peaden opinions, in which three of the Justices reaffirmed their belief that Cassar was wrong. Had the legislature thought Cassar’s majority was wrong, surely it would have changed the pertinent language to make this clear. Instead, in the course of four legislative acts, it left section 29 unchanged. Should this not logically mean that the legislature approved the interpretation of Cassar’s majority and rejected out of hand the interpretation of the lone dissenter in Cassarl Such is the conclusion to which a legislative acquiescer should have been driven, but Justice Black nonetheless felt free, in Linshi, to “legislate” by saying that the section 29 language meant other than the “Court’s solemn word”¹¹ said it meant in Cassar, and this after the legislature had four times left untouched the section 29 language while amending other sections of the act.

A doctrine which is so flexible that it bars correction of judicial error in eases like this of Autio, wherein the pertinent statutory section has been subject to legislative action only three times¹² since the blatantly erroneous interpretative decision of Eajduh, but does not bar such correction in the case of Van Dorpel, wherein the pertinent statutory sections had been the subject of such action nine times, is indeed a useful device to reach a desired decision. However, when such antinomous results emerge from a single principle, how does its application help “skilled lawyers, and correspondingly skilled subordinate court judges, [to] ‘know the law’ ” ?

Consider next the case of Wilson v. Doehler-Jarvis Division of National Lead Company (1960), 358 Mich 510. Earlier, in 1954, in Fowler v. Muskegon County, 340 Mich 522, 526, a case dealing with the workmen’s compensation law, this Court unanimously held:

“Under our holding in the Luyk Case, [Luyk v. Hertel (1928), 242 Mich 445] the remedy for all matters connected with compensation must be found in the statute, and our holding in the Kermott Case, [Kermott v. Ayer (1863), 11 Mich 181] is that interest is statutory. It must follow that where the statute does not provide for interest, none can be granted.”

In Wilson, a majority of five, including Justice Black, properly concluded that Fowler had been erroneously decided and voted to overrule it.

In the interval between Fowler and Wilson, the workmen’s compensation law had been the subject of legislation three times, by PA 1955, No 122, PA 1955, No 250, and PA 1956, No 195, yet the legislature in no way indicated that the unanimous decision of Fowler, which held that workmen’s compensation awards bore no interest, was wrong. Surely, then, it must have “acquiesced” in Fowler’s interpretation, and thus insulated that decision from judicial overrulement. But the extreme flexibility of the doctrine of “legislative acquiescence” comes to •the rescue of its advocates who, on selective occasion, shrink from its logical imperatives.

Thus it is said that only one unanimous decision interpretive of a statute followed by “legislative acquiescence”, silent or otherwise, does not inhibit the Court from later correcting its erroneous interpretation. See Justice Black’s opinion in Halfacre, supra. Although the single-decision exception is bandied about, I find no rationally consistent explanation even suggested for its validity. Either the legislature is presumed to act with all of our advance sheets in hand or it is not. If it is so presumed to act, its acquiescence in a statutory interpretation announced by us in one decision should be as binding as its acquiescence in an interpretation announced in several decisions.

, In Park v. Employment Security Commission (1959), 355 Mich 103, 141, Justice Black relied upon two so-called- exceptions to the “legislative acquiescence” doctrine (“one interpretive decision isn’t binding” and “an interpretive decision in which there is a dissent isn’t binding”) to escape again the then unwelcome strictures of the doctrine. In Chrysler Corp. v. Smith (1941), 297 Mich 438 (135 ALR 900), six members of the Court had interpreted language in section 29 of the employment security act to bar claimants from benefits.¹³ Despite a persuasive dissent, the legislature in the interval between Smith and Park amended section 29 no fewer than seven times,¹⁴ but remained, in Justice Black’s language, “disinterested in correction by its hand of our grievous misinterpretation at that time”. 355 Mich 103, 142. The legislature being unwilling to correct the Court’s error, despite seven specific opportunities, Justice Black then saw no reason why the Court could not do so itself.

See, also, Thompson v. Ogemaw County Board of Road Commissioners (1959), 357 Mich 482, and Employment Security Commission v. Vulcan Forging Company (1965), 375 Mich 374, both of which decisions overruled earlier decisions construing statutory language and in both of which decisions Justice Black concurred.

The cited cases show that steady judicial legislating, as horrible examples of which Justice Black holds up volumes 375 and 376 of our reports, began well before then and with Ms unqualified support. As a matter of fact in volumes 375 and 376 there are only four cases in which the Court overruled¹⁵ any of its prior decisions: Felgner v. Anderson (1965), 375 Mich 23, involving a question of common-law assumption of risk and in which Justice Black fully concurred; Employment Security Commission v. Vulcan Forging Company (1965), 375 Mich 374, involving an overrulement of a prior statutory interpretation, and in which Justice Black fully concurred; Mosier v. Carney (1965), 376 Mich 532, in which the Court overruled prior common-law decisions, to a limited extent; and Bunda v. Hardwick (1965), 376 Mich 640, in which the Court overruled a prior common-law decision.¹⁶

We might conclude this discussion of “legislative acquiescence” by quoting from the eminently correct writing of Justice Black in Park, supra, pp 145-147, and by hoping that he may yet return to the fold:

“In Helvering v. Hallock, 309 US 106, 119-121 (60 8 Ct 444, 84 L ed 604, 125 ALR 1368), the Court came to grips with today’s identical controversy. Having found an earlier rule of statutory construction quite untenable, the court was immediately confronted by a contention that congress, having failed to correct the court’s error, had perforce ratified that error and thus had rendered it immune from judicial correction. The court (pp 119-122) said (Justices Roberts and McReynolds dissenting):

“ ‘We recognize that stare decisis embodies an important social policy. It represents an element of continuity in law, and is rooted in the psychologic need to satisfy reasonable expectations. But stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience. * * *

“ ‘Nor does want of specific congressional repudiations of the St. Louis Union Trust Cases serve as an implied instruction by congress to us not to reconsider^ in the light of new experience, whether those decisions, in conjunction with the Klein Case, make for dissonance of doctrine. It would require very persuasive circumstances enveloping congressional silence to debar this court from re-examining its own doctrines. To explain the canse of non-action by congress when congress itself sheds no light is to venture into speculative unrealities. * * * Various considerations of parliamentary tactics and strategy might be suggested as reasons for the inaction of the treasury and of congress, but they would only be sufficient to indicate that we walk on quicksand when we try to find in the absence of corrective legislation a controlling legal principle.

“ ‘This court, unlike the House of Lords, has from the beginning rejected a doctrine of disability at self-correction. * * * The real problem is whether a principle shall prevail over its later misapplications. Surely we are not bound by reason or by the considerations that underlie stare decisis to persevere in distinctions taken in the application of a statute which, on further examination, appear consonant neither with the purposes of the statute nor with this court’s own conception of it.’

“Here, then, is our contributed view that stare decisis is a discretionary rather than obstinate rule of judicial conduct. Fairly analyzed, it declares that appellate courts should adhere to precedent save only when due consideration leads to firm conviction that the earlier decision or decisions (emphasis added) in scrutiny are wrong as well as unjust, and that more rather than less injustice will flow from perpetuation of that which is found erroneous.”

In the instant case of Autio, the appeal board made a record-supported finding of fact that plaintiff had suffered the loss of industrial use of his right hand as the result of an injury sustained during his employment by defendant Proksch Construction Company in 1952. The board also found that Proksch had failed to file an accurate report of this loss, having had timely notice thereof, a finding not challenged by Proksch, and the board concluded .that the limitational period which is expressly provided in the workmen’s compensation act was thereby tolled.¹⁹ However, the board held that plaintiff’s' claim for compensation for loss of industrial use of his hand, filed in June, 1961, was barred by the absolute six-year limitational period imposed judicially by this Court in Ilajdulc. Having written to overrule Hajdulc, I would reverse and remand this case of Autio for further proceedings. Costs to plaintiff.

T. M. Kavanagh, C. J., and Smith, O’Hara, and Adams, JJ., concurred with Souris, J.

1 PA 1912 (1st Ex Sess), No 10, as amended (CL 1948 and CLS 1952, § 411.1 eí seq., as amended (Stat Ann 1950 Rev § 17.141 et seq., as amended).

2 See, currently, CLS 1961, §412.15, as amended by PA 1965, No 44 (Stat Ami 1965 Cum Supp § 17.165).

3 See, currently, CLS 1961, § 600.5801 et seq. (Stat Ann 1962 Rev § 27A.5801 et seq.).

4 “Injury” was substituted for “aceident” by PA 1943, No 245. See, currently, CLS 1961, § 412.15, as amended by PA 1965, No 44 (Stat Ann 1965 Cum Supp § 17.165).

5 See, also, the following cases which, directly or indirectly, rely upon or construe Hay Chile as authority either for barring all benefits because claim therefor was filed after six years following injury or disability or for barring only those benefits which otherwise would have been payable more than six years before the elaim was filed: Ardelian v. Ford Motor Co. (1935), 272 Mich 117; Stone v. Ford Motor Co. (1935), 272 Mich 139; Aiello v. Ford Motor Co. (1935), 273 Mich 15; Oado v. Ford Motor Co. (1935), 273 Mich 510; Tinney v. City of Grand Rapids (1936), 274 Mich 364; Wright v. Mitchell Brothers Co. (1936), 275 Mich 591; Nurst v. Ford Motor Co. (1936), 276 Mich 405; Napolion v. National Concrete Metal Forms Corp. (1937), 279 Mich 668; Henderson v. Consumers Power Co. (1942), 301 Mich 564; Broadnax v. Ford Motor Co. (1944), 308 Mich 305; Scalzo v. Family Creamery Co. (1944), 308 Mich 587; Tarnow v. Railway Express Agency (1951), 331 Mich 558; Babcock v. General Motors Corporation (1954), 340 Mich 58.

6 It should be noted that as early as 1935, the year following the Hajduh decision, at least one justice of this Court argued that if an employer with timely notice of an employee’s injury failed to make report thereof, no limitational periods ran against the claim of the employee. See the separate opinions of Mr. Justice Potter in Ardelian v. Ford Motor Co. (1935), 272 Mich 117, and Oado v. Ford Motor Co. (1935), 273 Mich 510. As late as 1959 this Court suggested, perhaps too subtly, that the judicially imposed six-year limitational period with regard to compensation claims was of questionable soundness. See Johnson v. Cleveland-Cliffs Iron Company (1959), 356 Mich 387. There defendant argued, inter alia, that because plaintiff’s injury-induced amputation occurred in July, 1951, vrhile claim for compensation for specific loss was not made until December, 1957, the delay of more than six years barred plaintiff’s claim. The appeal board did not pass upon the question (although it was raised before it), nor did this Court, but the Court significantly commented (p 389):

“To this defense plaintiff says a number of answers suggest themselves. One of them may possess merit. It is that, in plaintiff’s words, ‘no report sufficient under the statute to start limitations was filed.’ Plaintiff relies on the provision of the above-mentioned section of the statute that the limitation shall not start to run against the employee’s claim until the employer has filed a report of the injury with the commission as required by statute.”

If the Court had thought that Hajduh and its successors were correct, it could have seen no merit at all in plaintiff’s argument, and would have affirmed the appeal board’s denial of benefits on the ground that claim for compensation had been filed too late. Instead, the Court remanded the case for further consideration by the appeal board.

7 CL 1948, §§412.9, 412.10 (Stat Ann 1947 Cum Supp §§17.159, 17.160). See, currently, CLS 1961, §§412.9, 412.10, as amended by PA 1965, No 44 (Stat Ann 1965 Cum Supp §§ 17.159, 17.160),

8 PA 1921, No 173; PA 1927, No 63; PA 1943, No 245; PA 1949, No 238; PA 1952, No 263; PA 1953, No 198; PA 1954, No 175; PA 1955, No 250; PA 1956, No 195. ’ >

9 But, we might acid, it is what the judges did do in Bajdulc.

10 CL 1948, § 421.29, as amended by PA 1951, No 251 (Stat Ann 1953 Cum Supp §17.531). See, currently, CLS 1961, §421.29, as amended by PA 1965, No 281 (Stat Ann 1965 Cum Supp § 17.531).

11 Mosier v. Carney (1965), 376 Mich 532, 594 (dissenting opinion of Black, J.).

12 By PA 1943, No 245; PA 1954, No 175; and PA 1965, No 44.

13 See footnote 10, supra.

14 PA 1941, No 364; PA 1942 (2d Ex Sess), No 18; PA 1943, No 246; PA 1947, No 360; PA 1951, No 251; PA 1954, No 197; PA 1955, No 281.

15 Excluded are cases in which less than a majority of the Court have written, unsuccessfully, to overrule prior decisions which,, .in (their judgment, were erroneous and deserved respectful interment. See, for example, my opinion in Thom v. State Highway Commissioner (1965), 376 Mich 608, 613.

16 Although we have confined this discussion in the main to cases involving statutory interpretation, because it 'is of overrulement of those eases that Justice Black now professes to be chary, we need not have done so. for as he indorsed in Van Dorpel (pp 149, 150) :

“We can see no basic difference between a court overruling its former case law and overruling its former interpretation of a statute. Bad law no less ceases to be bad law, however the accident of its birth.”

19 An inaccurate or incomplete report does not preclude tolling of the statutory limitational period provided by CL 1948, § 412.15 (Stat Ann 1950 Rev § 17.165). See Wilson v. Doehler-Jarvis Division of National Lead Company (1958), 353 Mich 363, 372-374, and Weenink v. Allen Electric & Equipment Co. (1936), 276 Mich 561.