Duford v. Escanaba Veneer Co.

Clark, J. Defendants, employer and its insurer, review on certiorari an award by the department of labor and industry to plaintiff employee. The questions are, that the accidental personal injury did not arise out of the employment, that it was due to plaintiff’s wilful misconduct, and that no claim for compensation was made within sis months after the date of injury as required by Comp. Laws Supp. 1922, § 5445. The basis of the contention that the accident did not arise out of the employment and that it was due to plaintiff’s wilful misconduct is defendants’ testimony that plaintiff was employed to sort veneer, and that he, against orders and wilfully, attempted to operate a machine known as a clipper and was injured. Plaintiff had testimony that he was experienced in operating such machine, and he testified: “My job was sorting veneer, but I was told when the other fellow went out I was to take the clipper job — when someone went out,”— and that he did what he was told and suffered injury. The department found the issue of fact in favor of plaintiff, which finding is conclusive on this court, and this disposes of the first two questions presented. Plaintiff was injured on April 13,1926. Notice to employer of claim for injury was filed with the department on May 24, 1926; it does not appear that this formal notice was given to the employer.' Plaintiff’s notice and application for adjustment of claim was filed with the department on July 29, 1926, and served on both defendants. The matter went to hearing— *193 “at which both the defendant employer and insurer were present and contested the plaintiff’s claim for compensation, all of which occurred within the period of six months following the accidental injury to the plaintiff.” The claim for compensation may be made orally. That defendants within the statutory period of six months contested, as stated, plaintiff’s claim for compensation at a hearing before a deputy commissioner, at which plaintiff and his witnesses testified, is sufficient to sustain the finding of the department that plaintiff made claim for compensation under the act. Affirmed. North, C. J., and Fead, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred.