*1 347 492 v. MANUFACTURING COMPANY.
DEMKIW BRIGGS Tort—Remedy. Law — 1. Constitutional any remedy yet right happen, no a tort vested for There protects. the Constitution Law —Remedies. Same —Statutes—Common 2. statutory legislature power change existing or has abolish remedies, except rights, common-law to vested as only remain force until or common statute laws altered repealed. Compensation op Workmen’s —Election Remedies. 3. compensation The workmen’s act a substitute former rights any might of action and law un- actions which remain by filing affected substitution are terminated aof acceptance any payment claim under the act or from the employer any or ques- his carrier insurance or submission of 1948, (CL 416.1). tion to arbitration under the § .act op 4. Same —Election Remedies —Res Judicata. employee injury An who suffers an and makes a claim therefor liberty compensation under workmen’s is not act then at adjudicate differences with other than before commission, compensation being the workmen’s its decision judicata (CL 416.1). res § op Remedies. 5. Same —Election proceeds A who compensation first before the workmen’s theory commission that his arose out of employment may the course of his bring an thereafter inconsistent, upon opposite action at law theory based or (CL claim that did §416.1). not so arise [1, [4] [3-6] [4] 2] 58 Am Workmen’s Submission of 1293. Workmen’s '58 Am 11 Am affecting independent Jur, Jur, Jur, References Constitutional Law 368 et rejected Compensation for Points claim Compensation action for under workmen’s § in Headnotes death 65. § et seq. seq. injury. ALR act Briggs Maneg. op Compensation Remedies —Workmen’s Election —Courts. 6. Employee sought first who workmen’s falling steps employer’s reason of sustained to defendant building having through plant passed gate after re- *2 ceived such for 7 months had no common-law cognizable (CL 1948, eause of in action therefor a court 416.1). JJ., dissenting. and Black, Smith
Appeal Wayne; (Vincent M.), from Brennan J. (Docket Submitted June No. 1956. 8, No. 38, Calendar 46,230.) Rehearing Decided 28, 1956. December May denied 17, 1957.
Following denial of award under workmen’s com- pensation proceeded act, Catherine in case against Briggs Manufacturing Company, a Mich- igan corporation, for on sustained in fall stairs. Motion to De- dismiss declaration denied. appeals. fendant with Reversed and remanded to directions dismiss. Masey, (Theo-
Rothe, Marston, <& Sachs O’Connell counsel), plaintiff. Sachs, dore for Lacey, (Buell <& Jones Doelle Doelle, counsel, for defendant. damages J. This action based Carr, guilty negligence
the claim that defendant was failing perform duty owing plaintiff in to to safety. appears the from declaration that January prior and for some time there- 30,1950, plaintiff employed to, was defendant at the lat- plant city ter’s Detroit, so-called Vernor the premises through plant gate that she the entered the morning, proceeded about 6:30 that she to building in which she worked, and while ascending approach building slipped, to said she injured. fell, and was It was further averred that duty keep stairway defendant failed in its to “in employees particularly safe condition for its plaintiff,” provide adequate lighting, keep to steps pro- free from water, ice, snow, and to ascending vide a suitable handrail for use stairway. appears
It further from fol- declaration that, lowing injured, the occurrence in which she was de- payments plaintiff provi- fendant made under sions the workmen’s at the rate act, per February Septem- week 1950, $24 payments ber 7, when such were discontinued. filed with the com- Thereafter pensation adjustment hearing commission for duly hearing dep- Such claim. held before uty commissioner who determined that under the proofs plaintiff facts disclosed was not enti- compensation. finding tled to On such *3 by applica- sustained the commission. Thereafter tion for leave to made, to this Court was and September 3, 1952, such was denied. Following plaintiff the action to,, above referred present theory instituted the was entitled to recover suit on the that she
damages in an action of trespass alleged on the case on the based tortious conduct of the defendant. Motion to dismiss the being declaration was filed defendant, it asserted that at the time of the she and subject compen- defendant were to the workmen’s jurisdiction State, sation law the that exclusive alleged with reference to the matters in the declara- provisions tion was vested in accordance with the plaintiff’s rights fully act, of said that had been ad- judicated, having that, selected her forum, recourse in courts the tort action was barred, that submitting her claim to arbitration constituted a provisions full release of the defendant under the (Stat § 17.212). of CL 416.1 Ann 1950 Rev Briggs Maneg. hearing, Following the motion was denied and, appealed. granted, defendant has leave of Mackin v. Co., In the case Detroit-Timkin Axle upheld constitutionality Court Mich the workmen’s law.* There plaintiff brought an action tort to in recover dam ages personal alleged, it suffered, equipment installation of defective because the defendant’s plant. In bar of such action defend pleaded ant the workmen’s act, and at proof the conclusion of the the trial court directed considering a verdict in In its the various favor. objections against urged validity of the statute, (p 13): the Court said misgiving “It can be assumed without that there right remedy any yet no
is happen vested for a tort protects. Except which the Constitution rights, legislative power to vested change exists to existing statutory or abolish and common- only law remedies.' Common and statute laws re- n repealed.” main in force until altered or objections The Court concluded to the grounds act based on constitutional were ten- applicable able, thereof under judgment case facts were valid. The en- accordingly tered on directed verdict was af- firmed. purpose scope compen of the workmen’s
sation act have been considered this Court in many cases since the decision in the Mackin Case. Paper Munising In Twork v. Co., 275 Mich 174, the presented analogous factual situation to that *4 plaintiff brought in the case at There bar. the suit damages resulting the in circuit court to recover by from caused the inhalation of chlorine dangerous employ gases and other while in the (1st Sess), PA 1912 Ex No 10. had made thereto he Prior defendant. compensation work- under the duly hearing compensation had A act. men’s deputy and an award was commissioner, before denied on ground plaintiff not suffered had
the
arising
of and in the course
out
an accidental
pro-
appeal
employment.
taken.
No
of his
by
pleaded
ceeding
act was
under
in the tort
its answer to
declaration
defendant
this
to
case was dismissed. On
case, and said
declaring
affirmed, the
order was
Court
Court
179)
(p
law “is a substitute
that the
any
rights
actions
law
of action and
for former
might
the substitution
which
may
remain unaffected
part
effectually
6, 1, there-
terminated
be
cited as CL
of.”
1948,
referred to is above
The section
§17.212).
(Stat
§416.1
It
Rev
Ann 1950
reads
follows:
n
dependents,
employee,
of his
ease
“If the
or his
any employer subject
provisions of
death, of
any pay-
accepts
any
act files
claim
or
with,
this
ment from such
pany
any
employer,
com-
or
insurance
carrying
risks,
the commissioner
such
personal injury, or makes
insurance on account of
any question
any agreement,
to arbitra-
or submits
act,
constitute
such action shall
tion under
employer of all claims or demands
release
such
injury.”
any, arising
if
from such
at law,
interesting
that in the Tworlc Case
note
employer, having
argued
plaintiff
denied in
that the
department
proceeding
of labor and
before
industry
occurred,,
had
accidental
that an
estopped
action
to claim in the tort
held
should be
juris-
court that said court was without
in circuit
argument
premises.
discussing In
diction
it was
opinion
pointed
of this Court
out in
liberty
the-
to follow diverse
was not
having
parties
themselves
submitted
ories,
*5
Briggs Maneg.
497
Demkiw v.
compensation
law
to the
were not
adjudicate
liberty
than
at
differences other
be-
department,
fore the
and that the decision of the
judicata.
deputy commissioner was res
A like situation was involved in
Ford
Morris v.
Company,
plaintiff,
Motor
Mich
372. There the
claiming
injury arising
that he had suffered an
out
employment, sought
in
of and
the course
his
com-
pensation in accordance with the statute. The com-
per-
mission concluded
he
that
had not sustained a
injury
purview
sonal
within the
of the act and de-
clined make an
No review
award.
of the order
attempted.
entered was
Thereafter action was
Wayne county
started in the circuit court of
to re-
damages
theory
liability.
cover
on the
of tort
Mo-
tion
asserting
made,
dismiss was
defendant
plaintiff’s remedy,
any,
if
was under the workmen’s
compensation act, that he had elected his forum,
compensation
and that the decision of the
commis-
judicata.
granted
sion was res
court
trial
plaintiff appealed,
motion
asserting
to dismiss and
compensation
that under the
facts
commission
jurisdiction
was without
because the statute was
applicable.
affirming
not
In
the order of the circuit
pointed
court it
this
Opinion
out in the unanimous
proceeding
that in
Court
under the com-
pensation
plaintiff alleged
act
arising
an
out
employment,
the course of his
and that un-
jurisdiction
der the statute exclusive
over the issue
compensation
raised
was vested
commission.
(p 374)
It was further
filing
declared
claim constituted “a release of all
claims
law
arising
injury.”
from the
The Court further stated
375):
(p
proceeded
“Plaintiff
before the
com-
theory
mission on the
that his
arose out of
employment,
the course of his
but, now, in
proceeds
theory
an action at law,
on the
that it did
Having adopted
theory
one
not so arise.
before the
may
commission, he
thereafter
proceedings
upon
bring
based
inconsistent,
other
theory
opposite
or claim.
Jacob,
Mintz v.
163 Mich
Curts,
Mertz,
245Mich
280;
348;
Donovan v.
Mertz v.
*6
In Totten v. Detroit Aluminum & Brass brought plaintiff an tion, 414, 344 Mich action of trespass damages on the on the case recover ground employer, that had breached defendant, his duty by owing plaintiff a it to because the status employee. of the latter as an judgment Defendant moved for pleadings, the motion de- on was by appeal trial the order nied the court. On was 418): holding (p the reversed, Court compensation act taken in its workmen’s “Our entirety light act, of the title to the and read plaintiff’s action. Plaintiff’s it, construe bars we cognizable a such nature as now action jurisdiction.” by court of common-law Company, 327 Ford Motor v. Dershowitz also, See, Mich 386. plaintiff’s in the declaration The averments duty theory clearly the rest on bar
case at which she asserts owing defendant, her employer-employee arose breached, “neglected that defendant Her assertion relation. stairway keep in safe condition and refused for its plaintiff” particularly employees this her averment therewith is significant. accord In customarily stairway used that said entering plant. employees other premises that she was made claim is No except the relation incident of as an the defendant position parties. took existing She between deputy commissioner, proceeding before in the the workmen’s before and on Briggs Manegí that she had sustained commission, aris- employment. ing in the her out of and course of may appears that, be noted further from the rec- sought, by Court, ords she has motion filed May ing deny- reconsideration order 31, appeal, renewing leave to thus, effect, assertion she was entitled to un- der the of the statute. Under the cir- presented grant cumstances this Court declined to September reconsideration of its order made on question, 1952. There can no however, be as to the plaintiff’s right basis of claim with reference to her damages to recover clearly from defendant. claim Such employer-employee rests relation- ship, which is in the asserted in the in- declaration compensation proceed- stant case as well as in the ing- principles recognized applied in the disposition
above control the decisions- of the case *7 denying The bar. trial court was in error in motion to dismiss. The order which the has been taken is reversed and the case remanded grant set directions to aside order said and to with the motion to dismiss. J.,C. and Dethmers, and Sharpe, Boyles, Kelly, J.,
J J. Carr, with concurred (dissenting). already J. We have commit Black, grievous against ted one error Catherine Demkiw, denying presently that legal undermined —on ground timely application 714)* v. (Pilgrim Menthen, 327 Mich —her
for review of the
May
order,
commission’s
entered
28, 1952, which
presently
order the
mentioned claim for workmen’s
rejected.
was
On motion of-Mr-.-Jus-
Motors
* Pilgrim,
Corp.,
it
tice Carr, bottomed dwindling majority proceeds sand, our now to com- pound by dismissing her error instant declara- lady going coming tion. This is thus beaten, legal all known out of on fora, determination may possessed merits of whatever claim she have against January 30, on defendant 1950. chronology us with events before starts due filing compensation, by of a claim for Catherine against Briggs Company, Manufacturing Briggs thereupon in October of 1950. insisted with signal success the claim be denied because Mrs. presently Demkiw’s considered not did arise employment. in the course and out of said, forget, merely we must not that “she was her way compensation commission, to work.” The com- pelled by Pilgrim agree with this matter-of-law defense, held: “The main issue whether or not sustained arose out course employment.
her half The accident occurred from one- three-quarters of an hour before her work duty performing any She commenced. request her at his at the time of the acci- merely employer’s premises She was on the dent. way hap- her to work. The fact that the accident employer’s premises pened on is not sufficient that it out of arose the course of establish employment. Pilgrim The decision in the Case controlling here.” The nest event Mrs. Demkiw’s mentioned application for leave to review commission’s quoted ing Briggs, successfully oppos- determination. here, insisted: *8 pointed opin out the commissionin its “As question the in occurred ion, accident from one half quarters prior of hour to three the time to when actually plaintiff’s work commenced. At the time Briggs Maneg. duty plaintiff owed no sustained, accident the employer. obligation have, She could if to the her and home defendant fit, returned to had seen she any doing her. was not no over She had control thing furthered time accident was sustained employer. of her She was the interest merely way and in of work, her itself justify the warrant or of conclusion not sufficient and in the of course arose out employment.”* next effort to obtain redress is
Mrs. Demkiw’s Briggs, us. named the declaration before shown therein, moved dismiss defendant as specifications motion of detailed account follows: plain- forth in the time of accident set “1. At plaintiff and were Michigan. defendant sub- declaration, tiff’s ject act of to the workmen’s amended.) (PA [1st Sess], Ex No industry department of of labor and “2. The Michigan jurisdiction over has exclusive of the State plaintiff’s declaration conse- and,
matters stated jurisdiction. quently, without this court is fully adjudicated rights- been have “3. Plaintiff’s industry department of labor before judicata. matter and this is res State barring her forum, has thus “4. Plaintiff selected to this court. recourse of the matters set “5. Plaintiff’s arbitration forth department plaintiff’s declaration before industry Michigan, consti- State
labor employer, of the defendant, a full release tutes by (Stat 416.1 CL reason 17.212). § Rev Ann >> fails to declaration state “6. Plaintiff’s cause against the defendant. of action position to denying compensation. Quotation plaintiff’s page 4 brief filed here leave to July 5, 1952, from order in op- *9 [Dee. 347
502 Reposts.- plaintiff’s department action before the “7. In of alleged industry, she that the accident labor and re- sulting during out of and her arose employment, of her whereas in the course action alleges plaintiff that coiirt, this arise out the accident did not during employment.” the course (Italics supplied by present writer.) Judge opinion formal Brennan, de- order, nied motion to dismiss. He said: my holding deprived “It is is not remedy of her under the law, sue quoted section of the workmen’s act above, for not, the reason she is in this action, * suing Briggs Manufacturing Company as ‘employer.’ my opinion language It is preventing the plaintiff statute, course, has the effect of any obtaining against other relief ‘employer,’ such, after has she once filed a claim compensation act; under the workmen’s but in the suing instant she is case, defendant, not as an ‘employer’ aas tort-feasor.” but. duly-applied Briggs appeal for leave to from the denying..dismissal. deny order time we This did not n By application. order dated 16, June 1954, we granted-’ to review leave said order. . . . TBd-record on in this case was filed here February printed 19, 1955. first of 4 briefs The May the case did not arrive until cause, 15, 1956. The
complicated by 1956 motion of Mrs. Demkiw we reconsider orir 1952 denial of that application her mentioned appeal,
for leave to was submitted here 4, 8, 1956.’ June October Mr. Justice Smith dissenting, majority and the our denied Mrs. writer muclj Demkiw’s for reconsideration. So record seriation of this case. for.
Ann 1950 Rev § 17.212).—Re reference is to part 6, 1, being CL p o r §416.1 ter. (Stat Bbiggs Manf'g, corresponding chronology now I turn Corp., Detroit & in Totten v. Aluminum Brass events quasi Totten, see, 414. we shall Mich companion error case and is disclose of this said refusing present Judge Brennan in to dismiss declaration. year *10 injury after occurred more than
Totten’s He did Demkiw’s was sustained. Mrs. compensation. apply dec- Totten Instead, filed damages, at law for characterized here laration opinions separate follows: relationship recognizes that the “Plaintiff of presented employee acting
parties side is of out- here an jurisdiction employment but of the his em- it to be the outside limits claims within relationship.” ployer-employee (Quotation from p opinion report.) of Mr. Justice Reid, shown Mr. establish, “The record here does recovery plaintiff relies, Justice Reid, ‘damages,’ relationship on his of employee. brings purview him This within compensation act. the workmen’s remedy, agree plaintiff’s I “For that reason may any, be, the act. It as has if lies under been opinions, that for val- shown our some' sometimes employee damages an cannot recover from id reason namely, compensation employer, under his injury. compensation an act, for workmen’s there are conceivable that circumstances under also employee may damages on recover based which employer, negligence workmen, of his or his en- relationship employee tirely unrelated to employer. the claimant bears the defendant (Quotation the case here.” that is not But p report.) opinion 419 of of Mr. Justice Boyles, judg Totten’s moved for defendant in Case April pleadings 1954. The lower 30, ment May The defend- 26, 1954. court denied such motion Michigan Reports. duly applied Septem- ant for leave to and, on granted application. 8, ber we 1954, Totten’s February record was filed here 12, 1955. The case submitted October and decided Decem- point pass legal ques- ber 28, 1955. From this I posed appeal Briggs. tions ten’s before inus this Tot-
distinguishing features will unfold. First: The commission’s determi- quoted adjudication nation, above, is an as much binding Briggs on defendant as on Dem- parties Idw. For the before it us, decided with finality that Mrs. Demkiw’s was sustained for protective pale stated reason outside the question workmen’s the decision act. We cannot contemplate
now. It us, leaves as we declaration motion to dismiss, with issue possessed whether right Mrs. Demkiw was left of a personal injury against of action for defendant Briggs theory requisite employment re- lationship had not started —in fact never started— *11 considering. on the event-date we are Remember, merely way Mrs, Demkiw “was on her to work” injured. she was That much, least, when is set- duty, judge tled. It is our then, to this declaration exactly Briggs negli- motion to dismiss if had gently injury anywhere caused Mrs. Demkiw’s on trip morning the route of her time clock. between home Here we a have case where and others similarly permitted upon situated were to enter plant premises an hour ahead of the start time, of day being the work a. 7 m. Whether ahead of time they customarily plant not, walked—-from gate highway driveway on Vernor a —across plant yard premises flight on the the outdoor to steps solely neg where Mrs. Demkiw, account of ligence Briggs alleged, slipped in-: and was Briggs Maneg. Demkiw steps, entering jured. and after From such they required plant building, were to ascend 3 flights room in which time to the work stairs sewing located.* machines were clock and legal position of these ahead-of-time was the What way place walking- their to actual work? workers, they enjoying protection employees, Were adjudicatory finding employment relation? The previously quoted says they trespassers “no.” Were having premises Briggs, passed after on the Hardly. through plant gates? they in Were Undoubtedly, considering finding. such vitees? they subject injury, neg disabling to by Briggs, or other Were ligently against Briggs? My all inflicted absent redress say “yes.”
elder Brothers I say previously prem “no,” and start with announced ise that final is a Demkiw of denial Mrs.
judgment parties both of status should cheerful ly accept. yes, merely Ah, Mrs. “was Demkiw way work.” way while
Second: servant is on his If, to hut place has not arrived at the actual an in work, jury upon negligence him inflicted of the one being for whom he is to start about it con work, ceded of was sustained not in the course employment parties both are subject applicable provisions when of actionable?† act ours, like is the The an given by swer is Professor with authorita Larsonf support. rightly sep tive as well as sensible arates an He
injury, which does not come within coverage given fundamental com (that pensation act what we have here in this case Law Republican as a *12 † Former Mrs. sewing-machine operator. School, Looks At His professor now on leave as had worked of law, Party” for the defendant Cornell under-seeretary (Harpers, Law School; 1956), of labor; some dean, Pittsburgh years, mostly author, “A 1' [.Dec. cov- Demkiw), itself is from an noncompen- particular presents elements but ered say (2 only, goes Larson’s damage sable p 136): § Compensation 65.10, Law,
Workmen’s all the cases are, course, class the former “In employment exist, did not or relation in which the employer an ex- within or his in which ‘injury category, in which there was no or cluded arising the course out of accident ' employment.’ Several observed at As has been usually points bad positions amount law, above, a considerable damage in which the inmade suits has been law, parties the the with reversed, have been escape denying coverage employee exclusive in order equal remedy with rule, and pleading construction of for a broad earnestness coverage.” way (1 puts Schneider, Work- it this Schneider 229): ed), p Compensation (Perm Text men’s employee engaged employer and are both the “If specifically employment type or in' business employment exempted cov- if the is act, or exclusively by if the in the act, Federal or some ered employee’s course not arise out of and did generally employment, the acts then of his damage against employee actions no effect have employers.” their reading readily apparent, from continuous It is recognized nationally penned these of the texts upon compensation, that our writers workmen’s Twork,* pretty much alone Totten—stands State— present regard. step will And it and out of say, glibly act is that our chant, do to as some substantially peculiar not, different. inquiry present concerned, and far as least so rarely diaphanous de- are distinctions so uttered Co., Munising Paper Mich Twork 174. *13 Briggs Manfg. 507 Demkiw nigh thus that we fined. Time is for due re-examine opinion case-light appearing of dissent in Totten disability that and eorrection be scanned anew. our studied doctrine of of self- majority opinion the above, Aside from Totten’s patently distinguishable from- this case for rea- is compen- The is that did sons. first Totten not seek and not obtain, sation adjudication did Mrs. did, as an beyond injured
that he was and outside employment. scope of the ten’s declaration was founded on The second Tot- is that
allegation that his during were and sustained an caused employment existing relationship, Mrs. whereas Demkiw’s declaration below,- was in court and planted I far concerned, still is so as am on the right negligent injury common-law of redress way- sustained while she was on to work had not yet scope mutually protective as entered of the rela- employee. tion of Turning novelty moment to Totten’s that employee jurisdic “acting an can be of outside employment” yet of tion his “be within the out employer-employee relationship” side limits of (p report) any authority respect 417 :* Does support notion that an ethereal zone of never-never exemption liability, absolute defined events from occurring on. while servant.is his wav to happy premiums paid land work—a where be need liability nor neither for the insurance quasi-employee all , bears favor exists risks— the one for whom the work is to be or been has relationship.” presented employment, August 16, 1955,.in “None This idea but within the outside limits of the these considerations apparently employee which the eame from acting following appears outside enter Totten’s, into first (p 5) employer-employee boundaries. relationship brief,, : . filed- here . here -his yet none reports have seen onr
done?* We he edictum ineogitant regarded Totten’s unless fortunately, us before question, such. suggested in the court it was not raised or because below. declaration was plaintiff’s that significant motion to 1953; defendant’s January
filed in filed in the month following; dismiss *14 by decided motion, duly submitted, been having Jauary 18, Brennan filed opinion Judge written one the court below construed 1954; that no in planted been worded or upon having declaration as or employer employee having and as relation of lim “within the outside an injury alleged occurring amendment, no either relationship; that its” of such dismiss, or motion to was sought of the declaration of said below; declaration, that the construction not brief Briggs’ mentioned presently urged, and leave to that appeal,† for supporting application for Judge real reason advanced dismissal before by filing pursuing Brennan was plaintiff, had yielded Briggs for compensation, claim release of the cause declared upon. an unconditional amendment, 1954, 412.1 (CLS PA No 175 The [Stat Supp §17.151]), may aid as to Cum relevant decision Ann 1955 help but it extends no with postdating its effective date claims bar, origin adjudi- like the where respeet of earlier one to cases other factors have intervened. cation and 30, 1954, application, † here supporting filed March In brief such Briggs questions proposed reviewable question as follows: summarized any Michigan under work- “First: submission to such compensation act to arbitration constitutes release men’s arising injury. all at law from employer of claims demands such subjectivity employee employer mere and the “Second: The Michigan compensation law constitutes the workmen’s to compensation workmen’s questions the exclusive tribunal to hear commission as by liability injuries employers for or death sustained their employees. workmen’s relieves the “Third: The act any liability provided personal injury for employer other than that employees under the workmen’s act. may denying compensation “Fourth: The error the commission only Court by application Michigan Supreme for be rectified certiorari by not suit at common law.” Briggs Maneg. summary of the from this I draw The inference intervening case, submitted Totten’s record is that suggested waited, case while Demkiw’s here be con- declaration Mrs. Demkiw’s first time that planted the relation of strued employee. quoted reasoning in
Relying, then, Larson’s by conjunction the com that which was settled with pensation that Mrs. determination commission’s compensable, no I find were Demkiw’s difficulty holding states that this declaration negligently in law at common of action cause proper injury; averment of it contains flicted contributory negligence; that it is freedom theory court, circuit framed on that the defense of election as found remedy and resultant intelligent governed altogether rule release is Marquette (Hansen v. Pere known in State once this 227), vis., that an election of Co., Mich 224, R. remedy proves no elec a tion at With which to be nonexistent says: respect Larson
all. to that rule “Unquestionably only is the view *15 purposes legislation, whatever on effectuates may against arguments raised it be based literal wording of statutes or on technical stages at the election some of the common doctrine compensation is above all a Workmen’s se- law. curity system; a strict election doctrine transforms grandiose double-or-nothing gamble. it into a sort of gambles appealing who Such are to those still think glorious judicial process game of the in which peril, and are made formal moves choices at and in victory spectacular is ultimate result one utter defeat for the other. The side and stricken play, workman in no mood for this kind is and necessity not be maneuvered into the should gambling ing rights, guise under the with his of enforc- against supposed penalty employer.” (2 347 Compensation pp Law, 67.22, Larson’s "Workmen’s 151.) opinion in the said, Third: It is of Mr. Justice Paper Munising supra; Co., that Twork v. Carr, Co., 320 Mich are factu Morris v. Ford Motor ally analogous disagree. to the I case bar. In and Morris—the each instance —Twork common-law plaintiff previously sought compensation being and, department to re unsuccessful in the failed below, attempt present review.* In the instance view timely sought review Mrs. Demkiw and, without success abortively applied later on, to this Court for citing Ditch review, reconsideration its refusal Corp., supra. import v. General The real Motors following Twork, in the here, interest is seen portion prevailing (p opinion report): of the 180 of contends, “Appellant applicability for the of the estoppel says employer may doctrine of deny not the accidental nature of before department industry having of labor and thereby, succeeded court now assert before the circuit jurisdiction lacking is in that be- forum plaintiff’s upon cause action bottomed is acci- . injury. argument dental The reasonableness of apparent, corollary but is sound; its also neither may remedy the an ride horses. His was to department seek the full from the find- deputy ing necessary, if then, to review by .certiorari.” recapitúlate: merely To Since Mrs. Demkiw “was way injury, on her work” at the time of her decla- .appropriate ration states an cause of action for neg- against ligence a defendant for whom she was not adjudicated working By at the time. construction, employment parties the contract of between the cited The same to iis by defenda true of Sotonyi *16 t n Detroit City Gas Co., . Mich Briggs Maneg. Demkiw strangers legal act them made morning punched until Mrs. Demkiw the time each sewing her vital re- started clock and machine. employee lationship did exist not of time and defendant did not claim other- such until wise negligently means that court below. This an by any wrong- Mrs. Demkiw inflicted on way work,” “on her while she was doer, contributory neg- provided be no there is actionable assiduous, ligence. too, if means, that her unsuc- remedy pursuit under the cessful, not bar this action. act does way noting by conclusion affirm,
I vote to majority even accorded has not our days it meet that for amendment usual 15 into declaration. has read concurred with J. J., Black,
Smith, J., did sit. Edwards, v. PAVSNER.
MONAGHAN City Equally Di- with Bus —Collision Automobiles — Truck — vided Court. bus, plaintiff passenger city who judgment Verdict by ap- truck injured when collided with a owned bus equally person, pellant, but another is affirmed driven 257.401). (CLS court divided § References Points Headnotes Jur, Appeal Am3 and Error 1160.