Vestal v. Therminsul Corp. , 291 Mich. 64 ( 1939 )

The finding by the department was in accord with the evidence and law and should be affirmed.

Plaintiffs' decedent returned to work February 26, 1937, the next day after the claimed accident, and continued to work until October 1, 1937.

I quote from the finding:

"In that the transcript of the testimony taken at the original hearing contained no evidence concerning whether the defendants had notice of the happening of an accident within the statutory period upon proper application, the taking of additional testimony was permitted for this purpose. Examination of such additional testimony fails to disclose that the defendants or either of them within the time permitted by statute had knowledge or proper notice that plaintiffs' decedent suffered an accident. To prove such knowledge or notice, the general superintendent and night superintendent, at the time of the accident, were called by plaintiffs for cross examination under the statute. Their testimony constitutes all the testimony produced relative to knowledge at the time plaintiffs' decedent was sick to his stomach but not that he was ill due to the inhalation of gas emitted from the cupolas in the defendant Therminsul Corporation's factory. The general foreman in this respect testified as follows:

" 'Q. When you went into Vestal's house, you saw Mr. Vestal in his home?

" 'A. Sure.

" 'Q. He said he was taken sick, did he?

" 'A. He said he was sick to his stomach, yes.

" 'Q. When Mr. Vestal's family physician, Dr. Barnabee, arrived, you went back to the plant?

" 'A. That is right.

" 'Q. You were at his home until he arrived and you felt there was nothing more to do for Mr. Vestal and you went back to the plant?

" 'A. There was nothing wrong with him when I went home. He was just sick to his stomach was all.'

"The night foreman testified similarly, as follows:

" 'Q. And after the men Sleeman and Webster were taken into the locker room and after Dr. Koestner arrived, Vestal was asked to go home and get some whisky and bring it back to help revive Sleeman and Webster?

" 'A. Yes.

" 'Q. You recall that the next morning Vestal came to you and reported to you that he had been taken ill the previous night, that is to say, the same night Sleeman and Webster were gassed?

" 'A. He reported unofficially.

" 'Q. He told you about it, did he not?

" 'A. Yes. * * *

" 'Q. He also told you the reason that caused him to have help to get into the house?

" 'A. Yes, sir.

" 'Q. That reason was that he was taken ill on his way to the house?

" 'A. That's right.'

"This testimony fails to disclose that within three months next following plaintiffs' decedent's injury, defendants had notice or knowledge that such injury resulted from his having been gassed by gas emitted from the cupolas in the Therminsul Corporation's factory. The only knowledge or notice the defendants had from the testimony adduced is that plaintiff was ill and sick to his stomach but there is no testimony that they knew or had notice of what caused such illness. Relative to notice, the facts are similar to those presented in the recent case of Clifton v. Chrysler Corporation, 287 Mich. 87, in which case the Supreme Court of this State held that the testimony therein presented relative to notice or knowledge was not sufficient to sustain plaintiff's action."

The finding of the department was in accord with the opinion in Littleton v. Railway Co., Inc., 276 Mich. 41, and should be affirmed. It should be so ordered, with costs to defendant.

McALLISTER, J., did not sit.