Maki v. School District

Bird, C.

J.

On October 26, 1917, plaintiff was employed by defendant constructing a water line to its school buildings. While so engaged a piece of brush *691 hit him in the eye and injured it. The injury resulted in the formation of an ulcer. When the ulcer cleared away it left a scar on the pupil, which materially diminished his sight. The following day plaintiff informed Mr. Salzmeyer, the superintendent of the work, of the accident, and claimed compensation. Compensation was later agreed upon and voluntarily paid for six months by the defendant. At the end of that time the defendant refused to make further payments. The matter rested in this way until March, 1925, when plaintiff filed his petition with the compensation board for further allowance. After a hearing the arbitration board refused to make .any further allowance. On appeal to the full board, plaintiff was given an award.

Counsel, in oral argument and briefs, have spent much time discussing the question as to whether any official or member of defendant’s board had notice of the accident and received claim for compensation. We think this is a useless argument, because it is conceded in the record that the school officials recognized its liability and agreed with plaintiff for compensation and voluntarily paid it regularly for six months. This action upon the part of the school officials eliminates the question of notice of injury, notice of claim, and was a distinct recognition of its liability. The question then is: Was plaintiff entitled to further compensation, and if so, how much? These questions lay with the compensation board, the same as though it had determined compensation in the first instance. But counsel says the application for additional compensation was not made soon enough, and that the general statute of limitations had run against it. This question might be before us if counsel for the defendant had raised the question in its pleadings and filed it with the board. The statute of limitations is a voidable defense and cannot be shown unless notice *692 is given of the defense. Rule No. 4 promulgated by the compensation board, and approved by this court in Roach v. Kelsey Wheel Co., 200 Mich. 299 , requires notice, as follows:

“If the employer denies liability in case where a claim for compensation is filed by an injured employee or his dependents, such denial shall be filed in duplicate with the commission in writing by such employer and shall set forth with reasonable detail and certainty the facts and circumstances upon which he relies as a defense to such claim. Upon the filing of such denial in the office of the commission, a copy of same shall be furnished to the claimant, so that he will have such seasonable information as to the nature and particulars of the employer’s defense as may be reasonably necessary to enable him to procure witnesses and prepare for the hearing. Respondents will be limited to the grounds of defense so stated on the arbitration hearing and also on review before the commission:

Provided, that in exceptional cases and for good cause shown respondents may be permitted to amend such denial of liability, which is in the nature of a plea, but such amendment will not be allowed in cases where it would be inequitable or result in surprise to the opposite party. Failure or refusal to seasonably file such denial shall be deemed an admission of liability. One of the fundamental. purposes of this rule is to prevent parties from concealing their defense in a case until the opposite party has submitted his proofs, thereby misleading him to his injury.”

This notice was not made and filed as required by this rule. No hint was given in the notice that was filed by defendant that it would rely upon the statute of limitations. The failure to give this notice precludes the defendant from making this defense.

Wheat v. Clark & Hulse, 221 Mich. 556.

In the affidavit for certiorari, which the defendant filed in this court, error is assigned on the holding of the compensation board that -plaintiff had, within the *693 meaning of the compensation law, lost an eye. Notwithstanding this assignment, counsel for defendant has not argued that question nor referred to it in any of the briefs he has filed in this court. Therefore, under Supreme Court Rule No. 40, that assignment will not be considered.

Walsh v. Railway Co., 185 Mich. 177 ;

In re Warring’s Estate, 196 Mich. 720 ;

Ward v. Carey, 200 Mich. 217 ;

People v. Oprita, 213 Mich. 13 .

As this disposes of all the questions raised by defendant, the award made by the industrial board will be affirmed, with costs to the plaintiff.

Sharpe, Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concurred.