I cannot concur in this opinion.
The report of the accident stated:
"This man died * * * at Henry Ford Hospital from a ruptured appendix — peritonitis. We have no history of any injury which could have caused the man's death."
The only known injury was to his toe and that did not cause a ruptured appendix.
The department held the burden on defendant to produce hospital records, and —
"The defendant having produced no medical proofs of the condition of this man, and what caused his death, this department must find from the testimony submitted, and the undisputed facts surrounding the case, that plaintiffs have met the burden of proof, and that Elmer Tjernstrom died on August 17, 1936, as the result of injuries suffered while in the employ of the Ford Motor Company on August 12, 1936." *Page 458
It is claimed that when the workman returned home there was a bruise or mark on his abdomen and this may have had something to do with the ruptured appendix. Where he received that injury is not disclosed.
We said in Wiio v. Quincy Mining Co., 217 Mich. 476:
"Counsel argues that it is shown inferentially by the testimony that claimant's husband was well and made no complaint before he went away from from home on the morning of July 3d, and that when he returned in the evening he exhibited the cut or scratch. From these facts counsel concludes that, as he lived so close to his work, he must have received the injury in the course of his employment. The proofs show that Mr. Wiio did chores about his home. He may have received the cut or scratch while doing his chores. He may have received it prior to July 3d and it was unnoticed by plaintiff. He may have received it in the mine during the dinner hour. But whatever the fact is, the duty was upon the plaintiff to make competent proof of the fact that he received his injury from an accident growing out of and in the course of his employment."
See, also, Ginsberg v. Burroughs Adding Machine Co.,204 Mich. 130. In that case a box injured a workman's toe and there was no evidence of any injury to his body or legs. That evening a redness on his leg was found. The testimony disclosed that the workman had always before this been a strong, healthy man and never been sick. We set the award aside.
In the case at bar, the department stated:
"Therefore, when the defendant makes definite statements in reports filed with this department, as to the cause of death, and then withholds from the *Page 459 department the records and proofs in their possession and under their direct control that would either prove or disprove such statement we must apply the decision of the Michigan Supreme Court, as set out in Brandt v. C. F. Smith Co., 242 Mich. 217 : 'Failure to produce evidence within a party's control raises the presumption that, if produced, it would operate against him.' "
That was misapplication of the rule applied in that case.
The burden was not upon the defendant to establish the cause of death.
The award should be vacated, with costs to defendant.