Oado v. Ford Motor Co.

263 N.W. 727, 273 Mich. 510, 1935 Mich. LEXIS 614

• Court: Michigan Supreme Court
• Decided: December 10, 1935
• Docket: Docket No. 37, Calendar No. 38,396.
• Status: Published

Opinions

North, J.

December 6, 1934, the department of labor and industry made an award of compensation to plaintiff for the loss of the sight of his right eye which plaintiff asserts was caused by an industrial accident sustained by him while in defendant’s employ. Both parties are under the compensation act. Defendant reviews by certiorari.

The accident in consequence of which plaintiff asserts the right to compensation, according to his petition, “occurred on the-day of June or July, 1923but the department seems to have found that the accident occurred August 23, 1923. The exact date does not bear materially upon decision herein. Defendant made a report of a noncompensable injury to plaintiff’s left eye, dated September 14,1923. In the briefs it is stated this report was filed with the department of labor and industry in October, 1923. Following the injury plaintiff laid off from work for five days during which time he was treated at the Ford hospital. Thereafter he returned and continued in defendant’s employ until July 27, 1931. His application for adjustment of compensation was made in February, 1934. Defendant gave notice of the defense of the statute of limitations, and relied both upon the six months’ provision in the work-' men’s compensation act (2 Comp. Laws 1929, § 8431), and also the general statute of limitations (3 Comp. Laws 1929, § 13976).

There is testimony tending to show that previous to the time plaintiff entered defendant’s employ (1915) he had sustained an injury to his right eye. At the time of the hearing before the department the plaintiff had no industrial vision in his right eye. There is conflict in the testimony as to whether the accident plaintiff suffered in 1923 resulted in an injury to his left eye or to his right eye. The department found that “no report of the accident was made by the defendant.” Evidently this, was because of .a determination that the reported accident was to plaintiff’s left eye rather than to his right eye. But in either event the defense urged must be sustained. If, as defendant asserts, report was made of the accident, plaintiff’s petition for compensation is barred by 2 Comp. Laws 1929, § 8431, because his claim for compensation was not made within the six months’ limitation provided by the statute. On the other hand, if, as plaintiff asserts and as the department found, the accident which happened in August, 1923, was not reported, still plaintiff’s petition for compensation filed in February, 1934, was barred by the six-year provision in the general statute of limitations. Hajduk v. Revere Copper & Brass, Inc., 268 Mich. 220; Ardelian v. Ford Motor Co., 272 Mich. 117; Stone v. Ford Motor Co., 272 Mich. 139.

In a supplemental brief by plaintiff’s counsel the following contention is made:

“Plaintiff contends that the general statute of limitations could not begin to run until after the injured employee is entitled to recover compensation or after he is discharged from the employ of the defendant. Not necessarily from the time of the accident. ’ ’

The gist of the contention is that so long as the employee remains with the employer and earns as much in wages as he could be awarded by way of compensation, his right to petition for compensation does not accrue. This contention cannot be sustained. It so clearly contravenes the provision of the compensation law as not to require discussion.

The award of compensation will be vacated. Costs to appellant.

Fead, Wiest, Butzel, Bushnell, and Edward M. Sharpe, JJ., concurred with North, J.