Opinion
Docket No. 102.
Submitted April 11, 1928.
Decided June 4, 1928.
Certiorari to Department of Labor and Industry. Submitted April 11, 1928. (Docket No. 102.) Decided June 4, 1928.
Mrs. Frank J. Greene presented her claim for compensation against the city of Ann Arbor and the Fidelity Casualty Company of New York, insurer, for the accidental death of her husband in defendant's employ. From an order denying compensation, plaintiff brings certiorari. Reversed and remanded.
Emmons, Klein, Ferris Cook, for appellant.
Bishop Weaver, for appellees.
Plaintiff, the widow of Frank J. Greene, filed a claim for compensation under the workmen's compensation act. On final hearing before the commission, it was held that her claim was barred because not made within two years after the accident which resulted in her husband's death.
This question was before us in the recent case of Hovey v. Construction Co., ante, 84, and it was there held that this statutory limitation did not apply to such a claim. It is but fair to the commission to say that language used in Millaley v. City of Grand Rapids, 231 Mich. 10, was capable of the construction they placed upon it. For this reason, the award must be vacated, with costs to plaintiff.
The defendant, however, also insists that the record discloses that plaintiff's husband in his lifetime made a claim for and accepted compensation from others, in whose immediate employ he was at the time of the accident, for the injury which he received, and that he thereby elected not to take under the provisions of the act. This presented a question of fact which was not passed upon by the commission.
The record will be remanded for further action not inconsistent herewith.
FEAD, C.J., and NORTH, FELLOWS, WIEST, CLARK, McDONALD, and POTTER, JJ., concurred.