*1 338 385 338 FARMS, INC. v. FAIRVIEW BUGG Cоurt Compensation Compromise and Settlement. — 1. Workmen’s issue resolve the of whether Parties, agreement, did not redemption agreement was determination approval aof Compensation Workmen’s liability under the conditions of they commission nor did submit Act they question for reserved the to the referee for decision represented expressly in a lawsuit and determination disputed practice and this matter was still referee that permissible act. is under the Compromise and Settlement —Partial Settlement. 2. they controversy upon may any part of a which Parties settle may part for liti- agreement reach and leave the controverted gation. Judgment 3. —Bar. bar, and ren- adjudication, An in order to must be taken dered the merits. Evidence —Parol Evidence —Res Judicata. 4. given question admissible to ascertain whether Parol evidence is litigated, decided the record in issue submitted and where judicata res the issue of is raised. not conclusive and References in Headnotes Points Jur, Compensation seq. et 1, 3] 4] 5, 58 Am Workmen’s 389 2] § 2d, Judgments 46 Am Jur 477. § 2d, Judgments 46 Am Jur 606. § seq. Jur, et Compensation 58 Am 270 Workmen’s 6] § Jur, Compensation 58 Am Workmen’s 355. 7] § 2d, seq. 22 Am et Jur Death 8-10] § Jur, Am50 223. Statutes 11] § Jur, Compensation 58 Am Workmen’s 371. 12] § 2d, 22 Am Jur 89. Death 14] Jur, seq.; Am et 22 Am Jur Compensation Workmen’s 15] 2d, Death 97.§ Compensation Liability—Redemption Agreement. Workmen’s — The conditions the Workmen’s necessarily Act are determined compensation department *2 purpose only approving for the redemption of a agreement, necessarily adjudicate but does not the issue for all purposes. Compensation Redemption Agreement Judgment 6. Workmen’s — — Judgment. —Default An agreement of in a compensation workmen’s case jurisdiction admits the only purpose commission for the approving of agreed payment just the judgment by as a default legality admits the of only the purposes demand for the of the suit. Compensation Redemption Agreement Estoppel Workmen’s — — 7. —Release—Bak. Defendants, employee were the and who a fellow of decedent, plaintiff’s estopped were to raise claim of the wrongful by in release an death action administratrix who Compensation had filed a claim the Workmen’s Department with against employer, light agreement of parties an disputed the workmen’s case that the conditions of act would be reserved for determination action, payment by the law and the employer pursuant redemption agreement to the under the circumstances of voluntary case tantamount to a payment and could pleaded in bar (MCLA §416.1). lawsuit
Opinion Concurring in Reversal
Black, Beneficiary Compromise — Wrongful — — Death Death Settlement. wrong- injured beneficiary alleged pecuniarily No cause for of may, by separate, finally death her or unilateral ful personal acquittance wrongdoer, the accused effective destroy of any pleaded such or otherwise conclude cause and beneficiary, having personally acquitted thus the accused wrongdoer, accomplished no has more and no less than out- right beneficiary. elimination or such himself herself of Wrongful — — — — 9. Death Death Parties Proceeds Com- promise Judgment. — and Settlement individually duly pending One concerned in or with suit for wrongful may not, death action other than in strict taken probate statute wrongful and the act death with the accord rights proceeds action governing distribution of for of of statutory rights destroy the wrongful death, suit or defeat thereof; proceeds under these potential in and others of statutes legislature that one thus the intent it was resulting voluntary part may by on his either concerned binding upon adjudication him and the release or an eligible original right dis- alleged wrongdoer, as an bar his might have been but such action tributee whatever for (MCLA pecuniary him and as recovered §§ 600.2922, 702.115). — — Wrongful — Death Workmen’s 10. Death Compromise — — — and Settlement Trustee Beneficiaries Privity. Judgment — — Parties beneficiary, may trustee, No whether or not he is a fellow separate personal his own venture consideration defeat rights rights eligible or, bar the other beneficiaries rights eligible trust, creditors their wrongful judgment statute, under the death no a court *3 sought or оther tribunal and obtained thus him could possibly they being rights, party privy said neither nor affect being represented actually legally thereto and in the or proceeding judgment nothing creative such whatever of in the workmen’s law hints discloses or even departmental authority adjudicate at rights the un- of represented others; rights arising by wholly virtue aof . separate wrongful (MCLA statute such as the death act 600.2922). Construction—Legislative Intent. 11. Statutes- — Michigan Supreme the the The should look to intent Court of statutory legislature apply provision when called a provisions. Compensation Statutes—Redemption Liabil- of — 12. Workmen’s Employ- Arising Employment Injury ity Erom of — —Course ment. Compensation authority the Workmen’s powers The of its the corners Department within must be of four found is there statute in that entire statute and nowhere mother department any provision to issue which authorizes prejudice’’ redemption which, by proviso or “no order of issue language, another saves determination forum for engaged injured employee course in the whether injury, employment Ms at the time or issue whether
of of employment (MCLA 412.22). arose out such of op Liability Compensation Award—Redemption 13. Workmen’s — —Widow—Dependents—Accord and Satisfaction. dependent fatally injured sought widow workman who of right, Compensation and received her own with Workmen’s compensatory Department approval, award that was fully paid and, redeemed and as between the widow and employer status, legally settled her as she became defendant statutory dependent decedent, entitled as such to dependency by her; received the widow is as much bеnefits ineligible, alleged injured pecuniarily as an survivor her husband, judged contributorily negligent she had been if bringing about accident which caused his traffic fatal injuries voluntarily or as she had settled with employer if given outright and had to it liability; by provi- her release of sions Act, Workmen’s she received satis- employer her husband’s faction injuries full for fatal (MCLA him §§412.22, 4I6.I). suffered — Wrongful — Judgment — 14. Death Death Accelerated — Beneficiary — Compen- — Widow Instructions Workmen’s — Redemption Liability. sation Trial court’s judgment order accelerated in an action under for wrongful brought by death act the decedent’s widow as administratrix estate, dismissing Ms the case as to the decedent’s employee and a decedent, fellow should be reversed and the cause remanded trial with the decedent’s eliminated, by widow jury instruction, as a pecuniary claimed beneficiary sought where she had and ob- statutory tained her elaim workmen’s com- pensation.
Dissenting Opinion
Adams, J. *4 Wrongful Compensation — — — 15. Death Death Workmen’s Election of Remedies. problem wrongful choice remedies between death of Compensation act and the Workmen’s Act is resolved once the provisions act, providing a section latter release for against employer, play, law claims come into as the remedy against Workmen’s Act is (MCLA §416.1). exclusive 385 Mich Appeals, Division Hol- Appeal 3, from Court Fitzgerald M. Burns, JJ., and T. J., P. brook, appeal application denying Oscoda, for leave to (No. January 5,1971. Submitted Miller, Allan C. 52,425.) January No. Decided Term Docket August 27, 1971.
Complaint Bugg, administratrix of the Olive Bugg, against deceased, Fair- of Orville E. estate Roy Wiltse, D. W. Willson, Farms, Inc., John view Jr., damages for for the W. and Dalton Wiltse plaintiff’s wrongful death decedent. Accelerated judgment Inc., Farms, for defendants delayed application for D. Plaintiff’s John Willson. ap- Appeals appeal Plaintiff denied. Court peals. Reversed. (Frances Avadenka, of coun
Bruce O. Wilson R. plaintiff. sel), for Fair
Cotter, O’Connell, Janes & for defendants and John Inc., view D. Willson. case comes to us T. G. J. This Kavanagh, compensation ques- appearance workmen’s of a really an what here concerns
tion, but involved implications the whole issue which has broad spectrum practice. of our controversy giving
The facts rise to disputed. employed cor-
Orville the defendant poration manager Fairview, farm near of its Michigan. Bugg and a 16, 1967, On March Orville company employee fellow John D. Willson took village repairs be' truck into of Fairview for waiting repairs made. Bugg made Orville While to be purchased garage automobile from the *5 Bugg Fairviеw Inc. Farms, Opinion op the Court was the fact that the automobile Due to owner. instructed John Willson to Bugg Orville operative, chain from the truck to the automobile a tow hook so farm. did and on the Willson take it back to farm, with garage return the trip truck Bugg riding and Orville driving Willson an accident wherein the occurred car, the towed with an- from the truck and collided car broke loose in the collision. was killed Bugg other truck. Orville adminis- was Bugg, widow, appointed Olive on 21, brought tratrix of his estate and June John against employer, death wrongful and Dalton Jr. W. Roy Wiltse, and W. Willson of the operator respectively the owner and Wiltse, other vehicle involved in collision.
In all denied the allega- their answers defendants Farms, and Fairview tions defendants negligence that pleaded Inc. and John Willson affirmatively acting and were both Orville John Willson Bugg the time of their at course employment rem- and exclusive accident, asserted plaintiff’s Act. was Workmen’s edy Bugg’s as Orville August 16, 1967, Bugg On Olive Compensa- filed a claim with the widow, Workmen’s Farms, tion defendant Fairview Department answered, deny- compensation’ its carrier injuries in that Orville had received ing Bugg of his employment. course Farms, Fairview 4, On defendants January 1968, wrong- moved to dismiss Inc., and John Willson asserted exclu- ful death action them against remedy. compensation siveness of the workmen’s as the this motion was Olive pending While into an with agreement claimant widow entered carrier Inc. and its and after $15,000 redeem the asserted liability 385 hearing approving of the commission order agreement mailed on March transcript compensation hearing shows parties agreed that all the settlement was *6 com- promise based that on asserted defense employment. injury did not arise in the course of May wrong- the motion dismiss 16,1968 On to granted ful action was on the trial death court’s holding plaintiff collaterally estopped that the was negligence proceed in the to workmen’s redemption. pertinent parts transcript re- demption proceedings reveal discussion between parties and the referee: Michigan, “The Reed Ranch, Fairview, Referee: against, Incorporated, Fairview the em- Farms, ployer, and Consolidated insurance Underwriters, carrier. represented by Bugg attorney, “Mrs. her Mr. represented Bruce and the Wilson, 0. defendants are by Mr. Donald J. Parthum firm of Ward, Cooney, Plunkett, Rutt & Peacock. Compensation “This case is before the Workmen’s Department Agreement Liability on an Redeem to prоposed regard for the of $15,000.00 amount in to injury date of March 16, 1967. attorney approved “I by have statement of. fees Bugg Mrs. in the amount of $2,250.00which would per proposed be fifteen cent of the appears and amount, in to be order. “I have a Form 100 in the file which was filed Compensation Department with the Lansing in on April showing personal 27, 1967 injury ame date 16, March Bugg at 1967, which time Mr. was killed in an automobile vehicle collision. Notice of dispute was manager filed the claims for the petition Consolidated Underwriters; then a for hear- ing was filed Mr. Wilson and that was received Lansing August 1967, and 16, also shows a Farms, shows the date, 1967, as 16, of March date accident. in an auto killed was decedent denying liability Mr. filed was answer “An case This of the defendants. on behalf Parthum Department Compensation for before the been has March trial on hearing pretrial then was set and parties with have come However, appear redemption papers order, to which Bugg. testimony ready of Mrs. hear the I am plain- [attorney by Mr. Wilson “Examination : tiff] you the Bugg, with “Q. have discussed Mrs. questions as whether legal case involved scope your was within the or not husband employment and, was killed the time that he at position you of Fairview know, is the Incorporated, their Workmen’s working at the that he carrier insurance that? understand he killed. You time that was *7 Yes. “A. you you to entitled “Q. And that are understand accept in matter. You have to this don’t trial go trial this settlement. can to before We appointed by duly or some other Referee Referee Compensation in and, Commission Workmen’s go might get more to we trial, the event that we might money being today, than we’re offered we might get thing, might get less we same conceivably get nothing You all. understand at that? Yes.”
“A. (After Referee.) examination you May I
“Mr. Wilson: ask: Did receive some you’ve got, money in the other that some benefits money you bank? How much do have in the bank right now? savings $4,000.00 “A. in certificates. savings “Mr. Wilson: You left in $4,000.00 have going money which she is account, to. to add this you. Thank 385 Mich your just Honor, too, this, “I like add would party in in this case a third that there is what we feel is an has taken which inconsistent position. Court of In Circuit County, they claim filed an affirmative have Oscoda scope employ- Bugg Mr. died within the that binding. I not understand course, ment. it is Of Compensation party is Workmen’s the true Compensation carrier has carrier. The Workmen’s rights subrogation agreed all in this to waive party so that we are third case that the event Bugg obtaining for Mrs. further sums successful moneys party will be no action, the third there owing due and carrier. to the Workmen’s “The “Mr. Parthum I understand. Referee: [attorney defendants]: Your only I Honor, would like to add for clarification: great youAs know, we have discussed the matter lengths. dispute alleging have We filed notice of Bugg that Mr. not out of and the death of did arise employment. in the are serious course There legal questions in the case. involved I think it Mr. would be safe to assume that Wilson position and have both case taken the had the regardless been I’m sure it tried, outcome, appealed Appeal would have been Board, Appeals up Supreme Court and on open type thing Court. It’s not an and shut frankly. consequently, one side or the other, So, it is a settlement based our defense that resulting of Mr. and his death did employment. arise out of and in the course of the your “Mr. Wilson: correct, That’s Honor. any recovery “Mr. Parthum: And if there *8 party recoveries under the third case, the Consoli- dated Underwriters as carrier, insurance Fairview Incorporated, any rights Farms, waives and all subrogation party third statute. Bugg, you “The Mrs. do understand Referee: talking you might you
what we’re about, —if Bugg money yon might some more receive fortunate, are from other case? this sir. Yes, “A. against in- Not “The Referee: party; against other but this carrier surance money any you from this other more
if do receive part give any yon of it back to won’t have case, to the insurance
company this insurance case, in this company. your too, The other case, Honor,
“Mr. Wilson: against employer. is also against “The is also the em- Oh, Referee: ployer? “Mr. Wilson: Yes.
“Mr. Parthum: As one of defendants. ques- “Mr. Wilson: As defendants, one being scope if tion he was not within the employment employer. we are entitled to sue the any you “The I In I see. think event, Referee: you Bugg? understand, do Mrs. not, I “A. so. believe you “The That this re- settlement, Referee: you; your goes $12,750.00
ceive attorney clear to $2,250.00 to satisfactory for his services. That’s to you, it not? “A. Yes. you “The If are so fortunate as re- Referee: any money any
ceive any out of other settlement you give other case later will on, not have to money you receiving back that now. right gentlemen? Is “Am I that the under- now, standing? Wilson: Yes.
“Mr.
“Mr. Parthum: Yes. just “The under- wanted Mrs. Referee: you stand. Do understand that? IYes, “A. do. way, making you’re “The In this what Referee: might compromise
we case, consider a settlement your compensation getting a case. You are fairly money you sum of if whereas, substantial *9 op Opinion the Court up you you end with could it, lost and trial if had nothing you decision before a favorable had if or, appealed might myself, be such a Referee you have a would before time some take it would final decision It go courts. to other could and it you long understand Do go time. for a could me?
“A. sir. Yes, sub- certain I with And believe “The Referee: I understand legal which in the case issues stantial exist fair is the settlement I believe case, in this you satisfied with your Are interests. best it? I am. Yes, “A. settling this in a sense And perhaps “The Referee: acting your you son, too, are also case, supported being going and he is to school if he’s
you. you understand that? Do “A. Yes. Right, gentlemen? “The Referee: sir. Yes, “Mr. Wilson: “Mr.
Parthum: Yes. I has covered think the case been “The Referee: rights. properly Bugg I her and Mrs. understands in her inter- is best am satisfied that the sеttlement ests. attorney competent I know a “Mr. is Wilson is and it also evident he law, this field personal friend of friend of and is a the deceased everything he has the widow and I’m sure he done approve will can the best interests of client. redemption.” appeal assay correctness On we are asked to trial of the action as to court’s dismissal Incorporated Farms, defendants Fairview and John D. Willson. judge’s reasoning whereby he
The trial arrived at the conclusion that motion should defendants’ excerpts granted following contained in transcript hearing thereon: does that 17.144,1 Court: This what “The Section say, again? [attorney plaintiff]: Thomas ‘Where the “Mr. act exist, right
conditions as herein recovery benefits, *10 to the exclusive the remedy against shall be the provided, employer.’ [attorney Janes Section “Mr. defendants]: says: is It more restrictive that 17.144.
17.2122 a claim, period. merely filing “The Court: realize that. On Section this could on we the but rely strictly opinion, 17.212 seems to me that to what the explain Supreme Court meant3 we would have to are that say they finding the is representative’s the action of the de- pendents. Therefore, as their acting representative, it becomes res judicata. Even though are they different one entity is entities, behalf of acting the other.
“To hold that it is not res judicata would be a strained of the finding scope of res judicata collateral under estoppel. Whereas Section 17.144 we need only their representatives that the parties say agreed through
that liability existed paid on money that, and that they a position not to claim otherwise, without into the getting ques * * * tion of identity parties. of the
“The Court:
It appears
to the Court
the
decedent
was
employee
the defendant Fair-
to the
be
with,
company carrying
any employer subject
if
question to
stitute a
any Rev
Company (1967),
“The All I said on that Court: that is alleged believe that the facts and the uncontroverted is of indicate that there a condition statements liability. apply if Therefore Section 17.144 would nothing more, there were But more. there is money that is that there has been a claim filed and paid parties under circumstances where both agreed, they estopped have and therefore to deny might these facts. I can see where it be harsh filing call to they the mere an once act, irrevocable but gone just a have further and entered into not payment, requires paymеnt unilateral a but that Fairview Farms, not of it is harsh sides, certainly both to consent literally.” 17.212 this section apply trial can be seen that court Thus it correctly Jordan, supra, as authority the rule regarded judicata, res under the doctrine of the final that commission is determination and their to on that binding parties proceeding Jordan, think he unduly privies. We extended however. Jordan characterized opinions dispute Jordan an
over whether John was or not employee a of fact. This misleading. as John question a con- Jordan’s status an employee actually law based on of If given clusion of state facts. such conclusion of made a tribunal actually law by jurisdiction such determination would competent be an adjudication body under judicata res doctrine would be binding with them. The Jordan and those parties privity did not advert Court, however, question redemption- whether is a approval agreement adjudication determination for the purpose judicata. the doctrine of res applying In in this event, case, we need not determine of whether question approval abstract redemption agreement is a determination conditions the act the com- commission. pensation Here, contrary to the trial did judge’s ruling, parties agreement did resolve that issue nor submit they referee for decision. reserved the They question *12 for determination in this lawsuit and expressly to the referee that the matter still represented disputed. as impermissible not regard practice
We do our no reason provided why act. We are nor does one occur to could not do so us. parties [Aug- Mich 338 385 not settlе why parties may no reason good is “There upon they may which a controversy any part part controverted leave reach agreement Klom Insurance Co. v. Wolverine litigation.” for 493 at 497. parens (1935), must adjudication bar, to he a In order merits. Tucker v. upon rendered taken and Parol Mich 73. evidence Rohrback (1864), in question a whether given to ascertain admissible where the and decided submitted litigated, issue was res judicata issue of and the not conclusive record is Porter 340 Mich Christian (1954), v. is raised. act neces- under the The conditions department determined sarily a approving purpose only adjudicate necessarily this does not But agreement. all purposes. the issue Cromwell in Field of Mr. Justice language L Ed (24 195) 94 US County Sac (1876), is in point: in in one litigation a not point principal, “On in settled conclusively cannot be received
action be- cause, different upon subsequent in the first determined have been cause it might action. actual other than the considerations,
“Various forward bringing merits, may govern party action, which or defense one recovery grounds different upon exist another action not may of the amount or such as the smallness demand, controversy, difficulty of the property value evidence, expense necessary obtaining and his own situation at the time. of the litigation, considerations like these ought A party acting subsequent in a contesting to be precluded out of the same trans- arising other demands action, admits for the only A default judgment action. the action the demand legality purpose *13 353 Fairview Farms, by Black, J. allegations of not make the does in suit: it claim or complaint evidence an or the declaration claim.” different legality judgment by admits the default Just purpose only suit, so of the for the of the demand jurisdic- agreement admit the does ap- purpose only for the commission tion payment. proving agreed (1879), Mich generally Miller 41 Jacobson v. See (1894), Mich 11, 102 Markstrum 96 and Bond v. 90, agreement light of the hold that We disputed parties case that the be re under the act would conditions action, these this law for determination served estopped of release the claim to raise defendants 4 17.212). § (Stat § 416.1 Ann 1968 Rev under MCLA pursuant payment by regard We redemption agreement the circum voluntary ato as tantamount this case stances of (1958), Mich payment Bullock as in Holcomb v. pleaded in the may in bar he 514 and hold that lawsuit. instant dismis- order of that the conclude, therefore,
We Incоrporated , of defendants sal in error. was entered John D. Willson may Appellant costs. tax Reversed. E. T. J., and M. C. T. Brennan, Kavanagh, T. G. with concurred JJ., Williams, Swainson, J.
Kavanagh, reversal). (concurring The instant J. Black, repealed The current section. 1969, PA No 317 has since Supp (Stat Ann 1971 Cum comparable provision MCLA 418.831 payment of 831. Neither 17.237[831]) which reads: "See. employee accepting same compensation or rights dependants of the as a determination shall be considered parties under this act.” 385
Opinion by Black, appeal January was submitted 6, 1971. The Court’s majority opinion July was delivered to the writer (1967, 1971. It is time now for third dissent 1971) against reasoning 1968 and support, I cannot preparation hence day and submission this 17th *14 August, ensuing 1971, to the other Justices, of the separate opinion for reversal. jurisprudential ghost of decеased John C. again,
Jordan1 returns
time
under the name of
Bugg.
deceased
looking
E.
Orville
This time,
as it
inevitably
question,
does at an
recurrent
probably
firmly
should—but
will
declare:
not—
injured
1.
pecuniarily
That
beneficiary
no
of an
alleged
wrongful
may,
cause for
by
death
his or her
separate,
personal
finally
unilateral and
effective
acquittance
wrongdoer, destroy
of the accused
pleaded
otherwise conclude the
cause.
beneficiary,
2.
having
per-
That
such
thus
sonally acquitted
wrongdoer,
the accused
accom-
has
plished
outright
no more and no less than
elimina-
tion of himself
beneficiary.
or herself as such
statutory provisions
Four
in force when the
—all
plaintiff-fiduciary’s pleaded
wrongful
cause for
death arose; also in force when she as claimant
sought
statutory
and obtained
оf her
compensation
claim
part
§
for workmen’s
a 5
as
(MCLA §412.5
2
[Stat
§17.155])
Ann 1968 Rev
dependent
join
particularly pre-
of the
decedent—
support
foregoing
cise
conclusions of law and
application
agreed controlling
their
to
facts.
provisions
§
Such
2922 of PA 1961,
236,
No
wrongful
(CLS
known as the
death
1961,
act
1 Jordan
Company
C. A.
v.
Roberts
(1967),
(same
The first
profession
pretty well
since
have been known
fully
Section 600.2922was
amendments
quoted
Morse,
130, 144,
O’Neill
*15
quoted
fully
702.115 was
Section
Company,
Franklin Fuel
Of the sections pointed significance. instant For convenience quoted is here: employe, dependents, in If the or “Sec. 1. subject any employer death, case of his accepts provisions any act claim or with, of this files any employer, payment any from such or insurance company carrying such оr from the commis- risks, personal injury, sioner of insurance account of question any agreement, any makes or submits under action shall consti- act, arbitration such tute a all claims or release such any, arising injury.” if demands at from such law, application § As for incon- above, of 412.22 adjudicatory testable demonstrative evidence 385 by Black, action taken Mrs. before by the Workmen’s of her Department, taken having unto herself the as statutory redemption ordered on her bid in the sum of $15,000, speaks both the con- trolling facts and the legal result due here. Such demonstrative evidence appears the form of an appendix, post at p of a consisting copy the statutory agreement for redemption of liability signed Mrs. Bugg and her husband’s employer, (Appendix “A”), of a copy department’s order redеmption, issued said 412.22 (Appendix “B”). Out of the foregoing conclusions proposed at the outset of this opinion have been drawn. Under the cited statutes it is patently fatuous to suggest that one individually concerned in or with a duly pending suit for wrongful death may, taken other than in strict accord with compiler’s sections 600.2922 and 702.115, defeat suit or destroy the rights statutory of others in and to the potential proceeds thereof. It is absurd to equally draw these statutes intent of the legislature that one thus not, concerned may by voluntary action on his part either resulting. a release or an adjudication him binding upon and the alleged wrongdoer, bar his original right an eligible distributee of whatever for such action might but. have been recovered himby as and for pecuniary As injury. to this last, consider quoted 416.1. It is 59 years old and seems never as endured hаving “such misunderstanding its action shall” declaration purpose.
Three years have passed since the Court faced *16 the problem of Jordan. To day this cannot fathom reasoning our No majority that case. trustee, whether or no he is a fellow beneficiary, may own separate venture for con- personal 357 v. Fairview Opinion by Black, sideration defeat or bar the rights of other eligible or, beneficiaries as also the rights here, eligible creditors of the of their trust, rights death No wrongful statute.2 judgment of a court or other tribunal sought and obtained thus by him could possibly affect their said rights, they neither being nor thereto and party privy not being represented actually legally proceeding creative such judgment. And nothing whatever in the workmen’s compensation law discloses or even at hints departmental authority adjudicate rights unrepresented others; rights arising by virtue of a separate wholly statute such as our wrongful death act.
Did we not properly hold, MacDonald v. Quimby 350 Mich (1957), 21, that the surviving widow’s effort plaintiff-trustee to bar the decedent’s dependent mother aas beneficiary pending cause come must to naught? Would Jordan’s have majority held as did had Mr. left Jordan say four or five small dependent either children, of his last or an earlier all been marriage, having ignored his widow as she proceeded redemp- statutory tion and personal appropriation the proceeds? What about the rights designated statutorily creditors of the unto estate, even the under- lowly taker for whom the legislature attempted expressly to provide?
In connection with last, read 600.2922 and §§ 702.115(6) again and reflect repetitious effect of 2921 2922 §§ (CLS RJA 1961, 600.2921, §§ 600.2922 Ann [Stat 1962 Rev 27A- §§ .2921, 27A.2922]). Section provides: “Actions on claims for injuries which result death shall beginning For reading this, subject being a Missouri statute pertinently couched 600.2922, the same as Southern consider Company (16 v. Tomlinson (1896), 369, S US Ct Pacific 193). L41 Ed *17 385 Mich
Opinion J. Black, prosecuted injured not be after the death of the person except pursuant next section.” Sec- provides: tion 2922 “All actions for such or death, injuries resulting brought only in death, shall be under this act.” point just presently
The made is not one of due interpretation application §§ and of 600.2921, 600- .2922 That and 702.115. arise when a will substan- tial and sum, over above the amount recovered for pecuniary injury, has been realized for conscious pain suffering, extensive-expensive and and for hospitalization; injured fatally medical care and having lingered painfully consciously decedent days, prior or weeks, months to demise. The specific point made is under the that, successive opinions majority damages Jordan, all recov- wrongful regardless erable under the death statute — remaining rightful distributees thereof —are lost once the decedent’s widow decides to seek and does obtain an award of workmen’s right. in her own exclusive following conclusions each based law, steadfastly proposition on the that this should Court legislature look the intent when called provisions, apply statutory provision professional submitted for consideration. powers authority
A. The of Workmen’s Compensation Department must be found within the four corners of mother its statute. Nowhere any provision that entire is there statute which department authorizes the to issue order of by proviso prejudice” which, or “no language, saves for forum determination anоther injured employee engaged in issue whether the employment injury, the course of at the time or issue whether em- that arose out of such ployment. suggest, This not to course, by Black, department attempted any super-jurisdic- such judgment. tional It did 412.22 not, its order redemption plainly speaks discloses. That order adjudication department; ambages not the Appendix counsel before the referee. See “B,” post pat *18 may lawfully
B. tell Our hornbooks us that no one injury. mulct twice for another the same Here dependent injured fatally widow of a workman has sought right, depart- and received in her own with approval strictly mental entered in accordance with compensatory § 412.22 aforesaid, a award that was fully paid. redeemed and and the As between widow employer that settled her status. defendant lеgally statutory dependent a She became dependency decedent, entitled as such to the benefits § her received 412.22. She is much as ineligible alleged pecuniarily injured an now, as survivor her judged husband, as if she had been contributorily negligent bringing about the traffic injuries3 which accident caused his fatal or, indeed, voluntarily ifas she had settled with the given outright and had to it her own release liability. By impact only § not of 412.22 but of Bugg Mrs. 416.1, has received satisfaction in full employer, from her husband’s defendant injuries Inc., the fatal suffered him. (1958), C. Holcomb Bullock v. 353 cited majority supporting holding as its that the paid merely Bugg sum Mrs. was to “tantamount a voluntary payment,” point. hardly is After de paid, fendant Bullock’s insurance carrier had pendente, benefits total sum of (of represented by which $735.75 ac $415.75 was hospital bills), crued and medical issue of com- gеnce, comment [3] See Restatement of Torts 493, pp 553, 554, “Beneficiary thereunder. Second, chapter Under a [17] Death Contributory Statute,” Negli Mich by Black, hearing pensable went to full and determina- departmental He tion referee. before denied compensation. appeal ground board affirmed independent “plaintiff an contractor that rather employee of defendant at the time of the than accident.” just
In
the administrative decision was
way
$15,000
as
around,
other
adjudicated
tune
and for
redemption
accepted
Bugg’s
of Mrs.
right
compensable
claimed
benefits.
Did
Divi
correctly,
Administrator
sion
rule
Johnston’s
(1970),
App
United Airlines
23 Mich
279, 285,
final
that “A
order
determination
accepted
and an award made and
cannot be disturbed
except
procured by
showing
it was
(Citing
[v.
fraud.”
Panozzo
Ford Mоtor Co.
(1931)],
[v.
The trial court’s order for accelerated should be reversed and the cause remanded for trial by jury with the in- decedent’s widow eliminated, pecuniary beneficiary. struction, as claimed plaintiff-fiduciary should have costs suffered thus far.
Nothing opinion foregoing set forth should impairing pleaded rights as construed of Mrs. Bugg, individually personal representative or as against any the decedent, other defendant than employer. said decedent’s Bugg Fairview Farms, Inc. Black, Opinion, “A”
APPENDIX (Agreement Redemption Liability) OP
STATE MICHIGAN DEPARTMENT OF LABOR
workmen’s DEPARTMENT AGREEMENT TO REDEEM LIABILITY
BETWEEN Bngg (Deceased) Orville Olive Bugg (Widow) Ranch Reed
Employee or Dependent (s) Michigan Fairview,
Address
and Farms,
Employer Consolidated Underwriters
Insurance Carrier parties represent The above as follows: Bugg (Deceased) employee Orvillе of Fair- was an Inc, view and or about 3-16-67 he received injury arising an employment out of of his course and that as result of such weekly payments have been made to Olive (Widow) by (6) six less than months, and that: parties
It mutual desire their permanently compromised, differences be settled adjudged, plaintiff’s and that claim for *20 compensation and medical benefits released, dis charged, by payment redeemed and ended the of of lump way redemption by $15,000.00in a sum, liability. 385 by Black, stipulated expressly in the and understood It approved liability redemption is not event Department, Compensation noth- by the Workmen’s before the Work- ing men’s be used herein shall contained subsequent Department at proceeding. report hereby approve submitted medical of the
I herewith. following fully (In space the facts: statе above paid compensation date, the for amount of total employee, disability present the reasons liability, desiring and amount paid approval agreement agreed upon of this to be by Department.) agreed parties in this between the WHEREFORE, it is Department may enter an order that cause providing of Fifteen Thousand that the sum ($15,000.00) Dollars shall be forthwith and 00/100 (Widow) paid by employer to Olive liability payment such injury payment said for the part first in accordance with redeemed shall be Compen- 22 of II of the Workmen’s of Section Part sation Act. 4 Mar
Dated attorney, (Signed by Bugg, Mrs. her by employer’s attorneys compensation carrier) “B” APPENDIX (Order Redemption) ORDER REDEMPTION (Mailed 1968) March 4, agreement employer’s redeem the entire plaintiff for an sustained weekly payment pay- single 3-16-67 lieu having Hearing ments been considered Referee *21 v. Adams, Dissenting J. Compensation Department Workmen’s of agreement appearing said that should he: (APPROVED) THEREFORE, IT that IS ORDERED said employer’s agreement to redeem entire weekly payments medical
for benefits herein payment approved. of $15,000.00
IT sum IS FURTHER ORDERED that said paid as follows: directly attorney(s) Bruce $2,250.00 O. Wilson, legal plaintiff all all for services includ- rendered,
ing expenses in therewith; connection $.....directly (specify type none) to $12,750.00 .... expenses directly plaintiff, medical being balance; defendant(s) IT IS FURTHER ORDERED that complete payment weekly compen- shall also $.....per sation week . . until..........,19 ; IT IS FURTHER ORDERED, Defendants pay transcript hearing shall the cost of the herein. E. Russell Bine
/s/ Hearing Referee Signed day County 4th of March, 1968. Oakland.
THE ABOVE ORDER IS ENTERED IN AC- CORDANCE THE WITH PROVISIONS OF ACT No. ACTS, PUBLIC FIRST EXTRA SESSION OF 1912, AS AMENDED. IF REQUEST A BY ANY OF THE PARTIES FOR BY REVIEW THE DIRECTOR, OR NOTICE OF REVIEW BY THE DIRECTOR ON HIS OWN MOTION, IS NOT FILED WITHIN 15 DAYS FROM THE MAILING DATE OF THIS IT ORDER, SHALL STAND AS THE FINAL DECISION OF THE WORKMEN’S COMPENSATION DEPARTMENT. (dissenting).
Adams, again
This case once
problem
raises the
choice
remedies between
MARIETTA
op
Reasonably
Negligence
Prudent Man—
Care —
1.
—Standard
op Industry
Usage
Customary
—Evidence.
non-negligent character
negligent or
standard
which the
is that of a
determined
conduct is
defendant’s
or
reasonably
same
similar circum-
prudent man under the
industry
usage
customary
practice and
and the
stances
engaged
evidence to
is relevant
in which the defendant was
[1]
2]
3]
4]
5]
7] 47
9,17,18]
6,11,14]
Liability
Custom as a standard of care.
38 Am
facilities for
38 Am
46
47 Am
38 Am
5 Am Jur
5 Am Jur
Am53
38 Am
4 Am Jur
53 Am
Am Jur
Am Jur
5 Am Jur
Jur, Negligence
Jur, Negligence
Jur, Negligence
Jur
Jur,
Jur, Negligence
Jur,
Am
References
2d,
2d, Jury
2d, Judgments
2d,
2d,
2d,
operator
Trial
Trial 357§
Appeal and
Jur, Negligence
Jury
Appeal
Amusements
2d, Appeal
§§
§
§
8-11.
14.
3.
and Error §
por
§§
§
§§
patron
et
§§171,174.
skiing,
Error
§
96,131.
29, 30, 34.
seq.
Points
117.