Cosgrove v. Gogebic County Poor Commission

258 N.W. 205, 270 Mich. 29, 1935 Mich. LEXIS 649

• Court: Michigan Supreme Court
• Decided: January 7, 1935
• Docket: Docket No. 57, Calendar No. 37,714.
• Status: Published

Opinions

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 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, 231 Mich. 523 (24 N.C. C. A. 170); Jacobs v. Glasser Hoffman, 200 Mich. 473; Bell v.Hayes-Ionia Co., 192 Mich. 90. The review of the finding of the commission here sought is by appeal in the nature of certiorari, warranted by 2 Comp. Laws 1929, § 8451. Ordinarily, upon certiorari, this court affirms or reverses cases brought to it from the department of labor and industry. There is testimony in the case tending to establish the fact that notice was given, although no direct testimony thereon. The department was undoubtedly in some doubt about the matter and applied to the solution of the question an improper rule of law. The review by certiorari from the department of labor and industry is analogous to review on certiorari from an inferior court, and while usually the judgment or finding reviewed is either affirmed or reversed, there is no insuperable legal objection to remanding the proceeding under consideration to the department for reconsideration upon a correct principle of law. We think this procedure is warranted by Cross v. People,10 Mich. 24, and People v. White, 53 Mich. 537.

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.