Hamilton v. Macey Co.

Brooke, J. Certiorari to the industrial accident board. Attorneys for claimant on June 20, 1916, gave the following notice to the attorney for the respondent. [749] “State of Michigan — Industrial Accident Board. “Harry Hamilton, Claimant, v. Macey Co., Furniture Mutual Insurance Co., Respondents. “To Francis D. Campau, “615 Michigan Trust Bldg. “Sir: You will please take notice that we will take depositions in the above-entitled cause at 419 Houseman Bldg., Grand Rapids, Michigan, at 2:00 in the afternoon of June 22, 1916. “Nichols & Shaw, “Attorneys for Claimant. “Dated June 20, 1916.” This notice was received by the attorney for the respondent on June 21, 1916. Respondent did not appear at the time and place indicated in the notice, nor participate in the examination. On June 29, 1916, the respondent received the following notice from the industrial accident board: “State of Michigan — Industrial Accident Board. “Lansing, Mich., June 28, 1916. “In re H. Hamilton v. Macey Co. “The depositions of the witnesses named below have been filed in this office of the industrial accident board. This information is sent to you by the order of the board so that you will have timely notice of the depositions referred to. [Signed] “G. W. Dickson, “Secretary, R. M. “Names of witnesses: “Harry Hamilton, “Dr. A. M. Leach, “Dr. Wm. F. Birse.” On July 3, 1916, the attorney for the respondent wrote the industrial accident board that he would object to the consideration of the depositions in question because of insufficient notice, and on July 10th filed with the board formal objections to their consideration as follows: “1. The notice served upon the deponent of the taking of the said depositions was unreasonably short to [750] enable the deponent to be present at the taking of the said depositions. “2. The notice of the taking of the said depositions did not contain the name of the notary public, or other officer before whom the, depositions were taken. “3. The notice did not contain the name of any witness, or witnesses whose depositions were to be taken. “Yours, etc., [Signed] “Francis D. Campau, “Attorney for Respondents. “Dated July 10, 1916.” The board, disregarding the objections of respondent’s attorney, made an award in favor of the claimant. Part 3, § 3, Act No. 10, Extra Session 1912 (2' Comp. Laws 1915, § 5456), provides: “The board may make rules not inconsistent with this act for carrying out the provisions of this act.” Under the authority of the statute the industrial accident board adopted certain rules which it caused to be issued as Bulletin No. 3. The following is a part of rule 6, there published: “Where cases are taken before the full board for review, additional testimony may be taken, when necessary, by depositions under the provisions of the general statutes of the State.” Act No. 314, chap. 17, § 6, Public Acts 1915 (3 Comp. Laws 1915, § 12494), which treats of depositions de bene esse in any civil matter or cause, provides : “Reasonable notice must first be given in writing by the party, or his attorney, proposing to take such deposition, to the opposite party or his attorney of record, which notice shall state the name of the witness or witnesses and the time and place of taking his deposition, and the name of the official before whom the same will be taken.” While in proceedings of this nature we recognize the [751] .propriety of ignoring so far as is reasonably possible technicalities, to the end that early adjudication may be had, we are still of opinion that the board in its consideration of evidence should be bound by rules promulgated under its own authority. The award will be vacated and set aside, and the case remanded to the industrial accident board for further action, in accordance with its rules and practices. Kuhn, C. J., and Stone, Ostrander, Bird, Moore, Steere, and Fellows, JJ., concurred.