
    FIDELITY & CASUALTY COMPANY OF NEW YORK v. VANTAGGI.
    1 Workmen’s Compensation—Notice to Foreman of Accidental Injury.
    Notice cto foreman of accidental injury sustained by an employee constituted notice thereof to his employer.
    2. Same—Notice op Accident—Insurance—Reformation op Policy.
    In action under workmen’s compensation insurance policy by insurer against employer for failure to give notice as required by policy, the court may not reform the policy, hence the insurer, according to the terms of the policy, was entitled to prompt notice when the employer, through his foreman, learned of the accident.
    3. Same—Finding of Department—Res Judicata—Reimbursement.
    Finding of department -of labor and industry that employer had notice of injury on day that it occurred was res judicata of question of when employer received such notice in action by workmen’s compensation insurer for reimbursement by employer whom insurer claimed had failed to give notice to it pursuant to policy provisions.
    
      4. Same—Breach of Insurance Contract—Lump-Sum Settlement.
    The payment of workmen’s compensation in a lump sum, pursuant to direction so to do by the department of labor and industry, would not bar insurer from recovering from the employer for breach of contract as to notice (2 Comp. Laws 1929, § 8438, as amended by Aet No. 148, Pub. Acts 1935).
    5. Same—Insurance—Notice—Waiver—Damages—Breach of Policy.
    In action by insurer under a workmen’s compensation poliey against employer who had failed 'to give notice to insurer of injury to an employee as required by the poliey, where there was no agreement in the policy whereby employer promises to reimburse the insurer, nor waiver by the latter, recovery must be had on the theory of damages suffered because of breach of the notice provision of the poliey.
    6. Same—Insurance—Hydrocele—Finding of Department—Bes Judicata.
    Finding of department of labor and industry that injured employee’s hydrocele developed shortly after the accident was res judicata in action by insurer against employer to recover damages suffered because of breach of notice provision of the policy, hence where possible confusion in the minds of the jury in the instant case as to time when hydrocele developed was injected by plaintiff, and error worked to detriment of defendant, plaintiff may not complain of error thereon under the circumstances.
    7. Appeal and Error—-Bejection of Testimony—Abandonment of Inquiry.
    Alleged error in claimed rejection of testimony tending to show that injury of which workmen’s compensation insurer had not been given notice was only minor at first but was aggravated by working and lack of immediate proper care, which appears to have been abandoned by insurer in its action against the employer for breach of the notice provisions in poliey, held, not reversible.
    8. Trial—Instructions.
    Charge of court in action by workmen’s compensation insurer against employer for breach of notice provision of poliey held, fair and to have squarely presented issue to jury.
    Appeal from Iron; Bell (Frank A.), J.
    Submitted June 7, 1944.
    (Docket No. 21, Calendar No. 42,583.)
    Decided October 11, 1944.
    
      Assumpsit by tbe Fidelity & Casualty Company of New York, a corporation, against Henry Vantaggi for damages resulting from failure to give notice of an accident as required by tbe terms of a workmen’s compensation insurance policy. Verdict and judgment for defendant. Plaintiff appeals.
    Affirmed.
    
      Fr.ed F. Murphy, for plaintiff.
    
      M. S. McDonough, for defendant.
   Butzel, J.

For a statement of tbe facts leading up to tbe instant case, see Fidelity & Casualty Company of New York v. Vantaggi, 300 Micb. 528. Ray Laska, an employee of. defendant, suffered a compensable injury wbicb be reported to defendant’s foreman. Defendant claimed that be was never informed of tbe injury until Laska filed bis application for compensation with tbe department of labor and industry. Had tbe employer been informed by tbe foreman, it would have been a very simple matter for him to notify plaintiff and thereupon tbe employer’s liability would have been assumed by plaintiff, tbe insurer. While it seems improbable that tbe employer would not have notified tbe plaintiff insurer of tbe accident, bad tbe employer himself learned of it, nevertheless we bold that notice to tbe foreman was notice to tbe employer. Tbe policy did not provide for tbe contingency of tbe insurer being still liable if tbe employer personally did not learn of tbe accident and, therefore, did not give tbe required notice. We cannot reform tbe policy and, according to its strict terms, tbe insurance company was entitled to notice when tbe employer through bis foreman, bis alter ego, learned of tbe accident. Plaintiff, as insurer, was entitled to prompt notice of tbe accident. After giving notice to defendant that plaintiff would hold him responsible for any loss it suffered because of the failure to give prompt notice, plaintiff defended the Laska claim. The department held that Laska had given sufficient notice and he was awarded compensation. • Thereupon, plaintiff insurer, in addition to making back payments, entered into an agreement to redeem liability by lump-sum settlement. The agreement was approved by the department and was satisfied by the payment of $1,600 to Laska. Plaintiff thereupon instituted suit against Yantaggi, the employer. On appeal, we held in 300 Mieh. 528, that the finding of the department as to notice was res judicata of that question. The payment of the lump sum by the insurer would not bar it from recovering from the employer because of breach of contract as to notice. 2 Comp. Laws 1929, § 8438, as amended by Act No. 148, Pub. Acts 1935 (Comp. Laws Supp. 1940, § 8438, Stat. Ann. §17.172). We'held, however,, that the carrier of workmen’s compensation insurance, being a paid insurer, could only recover such damages as it actually suffered because of the failure to give prompt notice as required in the policy. A judgment, therefore, directed against plaintiff was vacated and the cause remanded for a new trial in accordance with the opinion. The case was retried and resulted in a verdict in defendant’s favor. The case is here again on appeal.

In the opinion of the department on hearing on review, it is stated:

“ Prior to the accident, plaintiff had no difficulty whatsoever with his back and was able to do any and all types of manual labor. Following the accident he has not only been constantly troubled with his back but has also been bothered with a hydrocele and an enlarged left testicle, both of which conditions developed shortly, after the accident. To find that there is no causal connection between the accident and these conditions which are disabling would be to ignore entirely the practical aspect of the situation and to ignore the medical testimony which in the main fairly discloses that the accident could have been the cause of plaintiff’s disability.”

Many questions are raised by plaintiff as appellant. The doctors who testified for plaintiff did not see Laska until several years after the accident. Much confusion arose as to just when the hydrocele developed. One doctor stated that not having seen plaintiff at the time of the accident, he could not tell when it developed, that it might have been congenital. However, the confusion was not brought about by defendant. Plaintiff’s attorney, when questioning the doctor on direct examination, brought out the following testimony:

“Q. How long after in your opinion might a hydrocele develop?

11 A. Well, as to the length of time that may be hard to say or to set a time definitely, but hydroceles may form in a matter of hours to probably days and weeks, as well as months and years. That would all depend upon the size of the hydrocele.”

It can readily be seen that the doctors, in testifying, were giving their independent judgment on the question as to when the' hydrocele developed. At the time they examined Laska, it had grown to the size of an orange.

Further confusion was thrown into the case by the showing that Laska was able to do part-time work for a period of over two years after the accident. Many of plaintiff’s questions may be grouped under the single question as to whether the lower court erred in accepting the testimony of the doctors instead of the opinion of the department that the hydrocele developed shortly after the accident. We believe that plaintiff was largely responsible for injecting the question into the case by the testimony hereinbefore quoted and, therefore, cannot complain of any error. The testimony in regard to back injuries was excluded correctly. The finding of the department was res judicata as between the insurer and the employer. Fidelity & Casualty Company of New York v. Vantaggi, supra; Lumbermen’s Mutual Casualty Co. v. Bissell, 220 Mich. 352 (28 A. L. R. 874).

We do not believe that the errors complained of call for a new trial. Not only was plaintiff partly at faulty but the alleged errors operated against defendant, not against plaintiff. Had the hydrocele been congenital, and plaintiff was not notified immediately, plaintiff would have been the sufferer thereby. Had plaintiff had timely notice, it could have ascertained that the hydrocele was not caused by the accident. Having ascertained it, plaintiff could have readily defended Laska’s claim before the department. The failure to give notice deprived the insurance company of the opportunity of ascertaining whether or not the cause of the hydrocele was congenital or brought about by causes other than the accident. For this reason it could not carry on a successful defense before the department and was, therefore, damaged to that extent. The error, if there was one, strengthened plaintiff’s case. Moreover, the testimony was not entirely certain. It was shown without any question that -had plaintiff learned of the hydrocele a simple operation could have cured Laska in a very few weeks. However, it is noted that the doctors testified in the main in a guarded manner as to what could have been done. When the insurance company, instead of offering this so-called operation to Laska, after learning all of the facts, and thus curing him within a very short time at a minimum of expense, as they claimed they could have done, nevertheless proceeded to agree to a lump-sum settlement, uncertainty was created in the mind of the jury. The inference was proper and very convincing to' a jury that the plaintiff would not have consented to a $1,600 lump-sum settlement had it in any way been convinced of the efficacy of an operation at a minimum of expense. The insurance company’s action’would tend to show that Laska’s case was not one in which it was believed that the operation was advisable. It gave the jury a sound basis for coming to the conclusion that plaintiff was not entitled to recover.

Appellant further claims that the court erred in rejecting testimony to show that Laska worked four days after the injuries. Objection was made by the attorney for the defendant on the grounds that the record also showed that at a still later date Laska worked for a protracted period, and that this fact should also have been included in the question. The purpose of this line of questioning was to show that the injury, originally minor, was aggravated by working and by lack of immediate proper care. The court held that counsel for plaintiff should include all pertinent facts so as to enable the physician to come to his conclusion since he did not see Laska until over two years after the accident. The court did not exclude the question but required that a firm foundation be laid. Evidently the question was abandoned by plaintiff for his attorney did not pursue the subject any further. This was not reversible error.

The charge of the court was fair and the issue was squarely presented to the jury. No fault is found with this charge. In the light of the above determination, the judgment of the lower court is affirmed, with costs to defendant.

Starr, Wiest, Bitshnell, Sharpe, Boyles, and Reid, JJ., concurred with Butzel, J.

North, C. J.

I concur. None of the rulings of which appellant complained were prejudicial.  