*1 Fabricon Products Co. Cibor Opinion Court. compensation appeal of the workmen’s The award is affirmed. board appellant. remanded. Costs to
Reversed and T. J.,C. and M. Kavanagh, Dethmers, Souris, JJ., concurred. O’Hara, Adams, Brennan, J., concurred in result. Black, v. C. A.
JORDAN ROBERTS COMPANY. Court. Wrongful Compensation 1. Parties — Death —Workmen’s —Iden- tity of Parties. identity parties plaintiff, There no between administratrix husband, suing capacity of estate of her in her statute, death under the plaintiff, dependent husband, widow and sole of her deceased party compen- as a before the workmen’s department, acting right by sation in her own individual virtue provisions of the workmen’s 1961, seq.; 1961, 600.2922). CLS §411.1 § References for Points in Headnotes Jur, 493; Compensation 50, 51, 58 Am Workmen’s [1-3] §§ Jur, Judgments 30A Am 30A Am 397. § §§ Jur, Judgments 398. [4] [5 9] Jur, Compensation 58 Am Workmen’s 64-67. §§ — rejected Submission of claim under workmen’s affecting independent injury. 36 ALR action for death or 1293. Application acceptance for and of benefits under workmen’s com- pensation affecting right against employer act as of action in- dependently of ALR that art. 50 223. [10,11] Jur, Compensation 58 Am Workmen’s 493. §§ Jur, [12,13] Compensation 50, 51, 65, 484, 58 Am 493; Workmen’s §§ Jur, Judgments Am 397; 2d, 30A Am Jur Death 97. Jur, Compensation 58 Am Workmen’s 132. [14] [15] Jur, Compensation 58 Am Workmen’s 51. §§ Jur, Compensation 58 Am 50, 51, 65, 137, Workmen’s [16-20] §§ 493; 2d, 22 Am Jur Death 97. 2d, 22 Am Jur 22 Am Jur Death 98. [21] [22] § §§ §§ § 2d, 2d, 2d, Death Death Death 198. 22 Am Jur 100-102. [23] [24] 22 Am Jur 97. 379 235. ful Death — Judgment *2 pursued where the administratrix § 600.2922). doetrine of parties (CL in —Bes the later Identity a party remedy Judicata —Workmen’s res for in a former action in her ease sues of Parties. judicata under the workmen’s wrongful death, and CLS has no in 1961, her there application § Compensation Wrong- et 411.1 compensation being own individual seq.; no to a situation capacity as identity CLS statute, right of 3. Election Death — Widow’s identity not constitute an same defendant under men’s administratrix of her husband’s Identity compensation of Bemedies —Workmen’s proceeding 411.1 of person et of Parties. seq.; election of or in her individual act and CLS entity in the recovery remedies 600.2922). Compensation Wrongful estate, death act eapaeity of benefits thereunder did barring since there was no (CL under the work- in her from and CLS [1948] — her capacity suing by Entity. 4. Same —Decision Same Person or An necessarily election of remedies by involves a decision one person entity. and the same or Compensation Bights 5. Workmen’s — of Parties —Exclusive Bem- edy. adjudication Once there has been an rights parties of the of compensation act, remedy becomes (CL exclusive one 411.4, 416.1). §§ Voluntary Payment Negligence. 6. Same — of Benefits — Payment voluntary weekly compensation benefits does not constitute a determination of status under the work- compensation men’s act negligence. so as to bar an action for Acceptance Voluntary Payments Independent 7. Same — — Con- Negligence. tractor — Acceptance compensation voluntarily paid benefits a sub- sequent attempt compensation to obtain an award do not negligence by person having bar suit for in fact the re- independent lation of an contractor. -Award—-Illegally Employed Negligence. 8.Same — Minor — purported A by determination and award of work- compensation department illegally men’s employed to an minor negligence not bar a suit for does the minor. A. Injured Employee Wrong 9. Same — —Action in Forum. injured employee, mistakenly Brought An who has an action in against employer damages, circuit court precluded is not making from claim for workmen’s Benefits. 10. Same —Final Determination of Jurisdiction —Affirmative De- fenses. Proceedings resulting under the workmen’s act jurisdiction a determination appeal from which no is taken party, may the adverse Be as an raised affirmative defense employer subsequently Begun against action him (CL under the death seq.; CLS 1961, 600.2922). Judgment Judgment — Compensa- Accelerated Workmen’s tion. Grant of employer accelerated for defendant in action By administratrix under death Because of previous redemption By determination and compen- held, department proper, sation unappealed where order hearing referee constitutes a final and conclusive de- employer arising termination the defendant plaintiff’s out of decedent 1948 and CLS *3 seq.; 600.2922; et CLS 1963, 116). 411.1 GCR § §
Dissenting Opinion. Kavanagh
T. M. and Souris, JJ. Estoppel 12. Parties —Collateral —Res Judicata —Election of Compensation. Remedies' —Death—Workmen’s principles estoppel, The judicata, collateral res and election of brought apply remedies do not in an action widow of legal representative a decedent as her husband’s of of estate, pursued remedy given where the widow had a to her compensation act, as widow the workmen’s in earlier proceedings, personal rep- because the deceased widow and estate, be, resentative whoever it are distinct entities to of law, legal representative party estate’s to compensation proceeding (CL 1948 and CLS seq.; 600.2928). et 411.1 CLS § § Compensation Wrongful 13. Workmen’s Death —Parties. perfected that decedent’s widow claim workmen’s fact for dependent as a the avail- irrelevant benefits remedy ability brought wrongful death, an action of of estate, the widow as a case administratrix the decedent’s in of 235. party estate was not a where the decedent’s workmen’s compensation proceeding (CL and CLS § seq.; 1961, 600.2922). CLS § Liability—Conditions. 14. Same — liability One the conditions under the workmen’s com- of pensation relationship employment act is that be- injured person sought party tween the and the to be liable held (CL 1948, 411.2). must exist Bemedy. 15. Same —Exclusive Only liability when the conditions workmen’s com- pensation provide in do exist does that the ex- act. fact remedy (CL 1948, 411.4). clusive Liability—Pleading. 16. Same — Complaint alleged which found, upon which it could be facts from independent trial that decedent was an eontractor and not employee alleged that one the conditions of defendant of. liability under the workmen’s act did not of exist, allegations true, such were compensa- workmen’s if wrongful tion statute would not (CL 1948, bar death action 411.4; 1961, 600.2922). CLS Applicability—Pleading. 17. Same — alleged Answer in plaintiff’s action which employee defendant, decedent was an and that the work- provided men’s remedy, the whole raised a disputed question complaint alleged ain case where the of fact it which could be the decedent was an inde- facts from pendent found contractor and not an defendant §411.4; §600.2922). por Jury Compensation —Workmen’s Question —Ac- Death — Judgment celerated —Belease. jury death action was entitled to trial Plaintiff disputed plaintiff’s issue whether decedent was em- fact ployee plaintiff timely in case where had demand- of defendant jury trial, judg- ed a motion accelerated defendant’s agreement ment was based on to redeem made between capacity in her as widow decedent and defendant prior compensation proceeding (CL 1948, 411.4; *4 1961, 600.2922; 1968,116.1,116.8). CLS GCS Judgment 19. —Dismissal and Com- Nonsuit —Death—Workmen’s pensation Independent Judgment. — Contractor —Accelerated judgment dismissing complaint wrongful Accelerated death for brought by estate, widow decadent as administratrix his of of C. A. 1967} against made a claim where widow had case defendant dependent decedent 'the capacity as widow and
her before of liability appeal board which entered workmen’s alleged error, complaint redemption agreement, was where facts independent was an that decedent which it could be from found that, there- and' an contractor and not of defendant liability fore, workmen’s under conditions of 1961, §600.2922; 1948, §411.4; act did not exist 1968,116). GCB Dissenting Opinion.
Black, J. Judgment Com- and Nonsuit —Death—Workmen’s 20. —Dismissal Judgment. pensation Independent Contractor —Accelerated dismissing wrongful death, complaint Accelerated for estate, brought by decedent as administratrix widow of of against in her had made a claim in case where widow defendant alleged dependent capacity and sole decedent as widow of ‘compensation appeal which entered board before complaint agreement, error, redemption where an em- question whether decedent was raised a as to fact of (GCB independent ployee or contractor of defendant 116). 21. Death —Parties. - wrongful right action One several beneficiaries of statutory right destroy than do mofe or death beneficiary himself, part, and as in whole or in eliminate right.. such distributee of Compensation. Parties —Death—Workmen’s 22. entity legal separate distinct and The widow a decedent is a capacity his estate person in as administratrix such her from act, in the since proceeding while statutory all and capacity- trustee latter she is was, capacity she statutory in the beneficiaries former re- expired time as the time the decedent at simply act, one demption under the workmen’s of. as'amended). (CL 1948, seq., §411.1 beneficiaries Damages—Release. Death — personal allowable to a decederit’s subject release or death act are not under the . by anyone proceedings had in except upon acquittance other probate code conformity, the death act as amended with '1965, (CLS 1961, 600.2922, PA amended as amended 181)'. amended-by No 146; 1948, 702.115, as PA CL *5 379 [Juné 235. Judgment Judgment —Accelerated —Parties—Death—Work- 24. Compensation. men’s by Accelerated in action administratrix for defendant error, alleged estate her deceased husband was where she surviving only 'widow, that decedent had but also left daughter damages a son and who sustained aas result of negligence, proceedings resulting defendants’ former n agreement redemption as to workmen’s had brought dependent been her as widow and claimed- sole (CL 1948, amended; seq., deceased 411.1 et as 600.29SS, 146; amended PA GCB 116).
Appeal Appeals, from 1; Court of Division Lesin- affirming Wayne, J.,C. ski, Watts Quinn, JJ., (Horace W.), Gilmore 1966. J. Submitted October (Calendar 51,391.) 9,No. Docket No. De- granted Rehearing July cided June 1967. 1967. 381Mich See App
2 Mich 113, affirmed. Complaint by Thelma Leola Jordan, administra- against Jordan, trix the estate of John C. A.C. Company, foreign corporation, Roberts arid others (CLS for under the death act 1961, 600- judg- for her .2922 husband’s death. Accelerated Company. ment for A. defendant C. Roberts Plain- appealed. Judgment Ap- tiff affirmed Court of peals. appeals. Plaintiff Affirmed. Lopatin (Norman counsel),
Albert L. Zemke, plaintiff. (Floyd & Alexander, Westcott, Buchanan Conhlin counsel) Company. defendant A. C. Roberts plaintiff, Jordan, J. John C. husband Adams, September attempting while 28, 1960, killed'on A. Roberts Company. C. Jordan op Court. by A. repair C. owned a crane before In rep February, 1961, Thelma Jordan department in dependent and sole the widow that she was resented and she and C. A. deceased, Jordan, C. John represented Company that “John *6 Roberts Company A. of C. an was September an he received 28, 1960, on or about arising the injury course of of and out emr redemption February a 24, 1961, ployment.” On hearing Liability by a referee. was entered order $6,774. redeemed was Jordan, Thelma Leola admin- 25, 1963,
On June Jordan, deceased, C. the estate John istratrix of commenced that negligence alleging death, suit killed as a of the result C. Jordan was John left sur- that he of the defendants and daughter viving who sus- him a a son and wife, negli- as a result defendant’s tained gence. judge The trial held: making receiving claim and workmen’s “In the the
compensation, plaintiff administratrix had to compen- the satisfaction establish to workmen’s an commission that her husband was em- sation Company. Having ployee A. Roberts having then had determination and made that plaintiff by redemption bound order is entered, appeal taken from such determination. compensation proceedings, finding* having and its judicata. unappealed from, res final and become It not now attacked herself be through the has received benefits who proceeding.” Motion for accelerated of de favor Company prior fendant C. A. Roberts to trial was granted. From thereof affirmance Court GCR See 1963, 116. Reporter. . "Mich Court. Appeals, appeal by- been taken to has this Court granted. leave Appeals
The Court stated the issue as follows: compensation redemption “Does workmen’s or acceptance payment der, followed there appeal under, from which no has ever taken been estop beneficiary, findings or others, from collateral necessary validity' attack on order?” 2 Mich of said App 113, 114. agree we While with the conclusion of the trial judge Appeals, predicate Court we upon remedy our decision the nature of the the workmen’s statute rather than upon estoppel holding or a the decision of compensation department was res judicata. .
I. Some of the confusion in this case arises from *7 the fact that Thelma Jordan, widow and sole de pendent party of John Jordan, C. deceased, was compensa before the workmen’s department tion istratrix of the is the dan, ings, Thelma Leola admin Jordan, of estate John Jordan, C. deceased, present in this action. Thelma Jor
party compensation proceed to the right by in acted her own individual virtue provisions the and CLS of the act. 1948 CL seq. (Stat 411.1 et Ann 1960 Rev §17.141 Supp seq.). Ann Stat 1963 Cum Thelma Leola Jordan, administratrix of the estate legally appoint of John C. Jordan, deceased, is suing ed Jordan, deceased, John C. representative capacity wrongful in her death provisions wrongful virtue of the of the death (Stat statute. CLS Ann 1962 Rev brings 27A.2922). such an action-for She A. C. 243 op the Corkt. persons who are of those entitled to share benefit recovery case, it is claimed, John C. —in two children and his wife, creditors. Jordan’s identity Legally is no whatsoever between the there They parties. complete strangers. are above identity being parties,, the doc There no judicata inapplicable. 1181; 170 ALR of res trine Tucker Trust (1864), Mich 73; v. Rohrback Bankers Muskegon Forsyth (1934), Company v. (1937), 282 495; Gooden Mich 517; Mich Reid v. Sovereign Gumienny (1938), 411; Mich v. Hess Sovereign (1958), Giegling 154; 354 Mich v. Helmbold
(1959), Mich
II. eyes Jordan, the law Thelma Since Thelma deceased, and Jordan, of John C. widow of the estate of John administratrix Jordan, Leola separate existence, have a Jordan, deceased, election remedies. been an there cannot have An same a decision one and the election involves entity.2 person or
III. gives certain The workmen’s depend- statutory employees benefits their supplies a cause ents. death. 370 in cases action Corporation (1963), Moran In v. Nafi provisions construed 536, 545, 546, this Court provide an act to remedy: exclusive
*8 parties. Mich 519 of election [15] (CLS [2] of It part 1961, 413.15 See (21 3 of PA be of remedies occurred when Smith NCCA noted [1912] [Stat v. 401), that Port (1st Ann the treatment decided before Huron Ex 1960 Rev Sess), Gas No there of similar eases 17.189]). the & amendment by was an PA Electric Co. (1922), identity to section in terms [217] [155] of 379 Mich op the Court.
“Permitting the maintenance of actions for dam injured employee ages in the instances where compensation to, received, entitled and has under clearly the would he at variance with the statute express language Such ent hy legislature. enacted the as interpretation depend a an would mean that claiming injury person or because of dis other employee ability might maintain sustained the suit to No issue of such character was recover. Co., in Mackin Detroit-Timkin Axle involved pointed Mich out the Court some was ambiguous language. question was, what how squarely presented ever, in Wall v. Studebaker Cor parent poration, Mich in which the of compensation minor received in who juries employment brought in his suit for sustained parent wages of to which the claimed loss he was entitled. The Court the son’s quoted approval with part read, of the statute as it then and stated 1, 4, (p 436): “ plain language of this statute ‘We think that clearly that it the intention indicates legislature parent’s right abrogate action to minor child while em- for loss services ” ployed under the act.’ of the nature For a recent discussion this Court remedy, Husted Pow of the v. Consumers see, also, Company (1965), er 52-56. Once there adjudication rights parties of the has been remedy that act, under' becomes the one. exclusive
Plaintiff nature contends the exclusive remedy applies only when there has under rights. adjudication been holding Such contested provisions contrary be would act: “Where the conditions right recovery of
exist, the
exclusive
provided,
benefits, as
shall
herein
be
*9
245
A. op
the Court.
employer.”
remedy against
§ 411.4
CL
(Stat
17.144).
1960 Rev
Ann
dependents,
employee,
or
case
“If the
his
subject-to the'provisions
any employer
death,
accepts
pay-
any
any
or
with,
files
claim
this act
any
employer,
com-
insurance'
ment from such
pany carrying
or
from the commissioner
risks,
such
or
injury,
personal
makes
insurance on account
or
of
any agreement,
tion
release to such
any question
to arbitra-
or submits
a
shall constitute
such action
act,
under
employer
or-
all claims
demands
CL
injury.”
any, arising
if
from such
law,
at
§17.212).
(Stat
§416.1
Ann 1960 Rev
provisions of the
were construed
The above
appeals,
6th Circuit,
the United
court of
States
(CA 6,
Division
Truck Coach
v. GMG
&
in Pfeifer
1958),
In that
the mother of
F2d 40.
case
255
as a de
received a
award
decedent
appeals
pendent.
that the district
The court
held
against
correctly
em
an action
court
dismissed
ployer by
administrator
decedent’s
Gray
holding,
also,
v.
see,
the same
For
death.
(1918),
In
v. Mikel
Viaene
The determination of the forum ini- must tially parties. by he made one or more the interested proceedings
If are had under the work- compensation resulting men’s in a determina- jurisdiction taken, appeal tion from which no by party, the adverse such action be raised employer subsequently the in bar where suit is begun against him under the death act. It inis the nature of an affirmative if raised, defense and, subject is not to collateral attack toas compensation department. before the' workmen’s present unappealed In the case, order of the hearing referee constitutes final and conclusive liability determination of the defendant aris- ing out of the death of John C. Jordan. The deci- Appeals, sion of the Court of for the reasons herein appellee. stated, is affirmed. Costs to the Kelly C. J., and and JJ., Dethmers, O’Hara, concurred Adams, J. with (dissenting). principles J. of col- Souris, estoppel, judicata lateral res and election rem- industrial PA Supp as [15]), [3] amended For 3.29[378]). Reporter. statutory accident -380, PA provisions board, No here referred (Stat relative to [139] (Stat Ann 16.478- [1960] Ann transfer to, see CLS 1965 Cum Rev (Stat §17.6[16]); Ann 1965 Cum powers 1961, Supp § '§ 408.9, 17.6 A. Dissenting Opinion by Soueis, J. inapplicable to edies are this case. This is so personal repre- because deceased’s widow and estate, be, sentative whoever it are distinct legal representative, entities estate’s law, capacity, party not a such to the workmen’s compensation proceeding. only To this extent do agree opinion with Mr. Justice Adams’ in this I appeal. part Justice holds that section Adams personal rep- law1bars the maintaining resentative of deceased’s from estate an action at law under our death act2 because deceased’s widow was awarded benefits, redemption agreement order, under our work- men’s law. part
Section reads follows: “Where the conditions of under this act right recovery exist, provided, benefits, as herein shall be the exclusive remedy against employer.” *11 estoppel, judicata Since collateral res and elec- inapplicable tion of remedies are in this case, the perfected fact that widow deceased’s a claim for compensation dependent benefits as availability any remedy, irrelevant other quoted statutory language. as I read the presented by statutory provision, crucial issue that liability is whether the conditions instead, under the workmen’s law exist the factual in proceedings. context of these One of the conditions liability relationship of employment that law under is the injured person between the and the party sought to be held liable therefor. personal
Thus, had the of de- pleaded employment ceased’s estate such an rela- [2] [1] CL 411.4 600.2922 (Stat (Stat Ann 1960 Rev Ann 1962 Rev 17.144). 27A.2922), 248 379 235. Dissenting J. Souris, complaint,
tionship in her
or otherwise admitted it
judgment
granted,
at .the time accelerated
was
judge might
stage
trial
have been able at that
determine as matter of law that the conditions
liability
under the act did exist and, therefore,
part
that this action was barred
section
1.
Corporation (1963),
Moran
See
v.
370 Mich
Nafi
Varga
(1927),
536;
v. Detroit Edison Co.
240 Mich
Corporation (1922),
593; Wall v. Studebaker
219
434;
Mich
sion
v. GMC Truck & Coach Divi
Pfeifer
1958),
(CA6,
255
F2d
But she did not so
plead;
alleged
she
instead,
facts from which it could
upon
independ
be found
trial that
was
deceased
ent contractor and not an
of defendant.
allegation
If this
be found to be
then
true,
the con
liability
ditions
and section
under the act would not exist
part
would
bar this
alleged,
death action.3 Defendant’s answer
on the
employee.
other
that
hand,
the deceased was its
If
allegation
be
to be true,
found
then the condi
liability
might
tions of
under the act
exist and
part might
plaintiff’s recovery
section 4,
bar
under
death act.
the issue
However,
cannot
pleadings
be
from
determined
these
at
which,
best,
disputed
merely
question
create a
of fact. Def
endant’s motion for accelerated
asserted
grounds
specified
therefor which are
GCR
116.1(5),
provides
to which
GCR.
jury
if a
trial
been
has
demanded, as it any disputed
here, determination of
facts
postponed
shall be
until the trial on the
merits
payments
bility under
held
Mich
eases
exclusive
conditions
faet
We have held
liable for
emphasize
exist,
remedy.
and Holcomb v. Bullock
the
even after
negligence
the
aet do
that actions at law
point
that
at
benefits
faet exist
injured
law.
it is
only
Chaffee
*12
(1958),
from the
person
when the conditions of lia
be
dismissing case was since this jury determination was entitled question at the disputed deceased’s status of the part injury 1 of section before fatal time he invoked act could the workmen’s remedy death act. under the her to bar foregoing I reverse the would reasons, For the Appeals judgments circuit of the Court further this case for court and remand opinion. Furthermore, with inconsistent plaintiff her costs. I would award with J., concurred J. T. M. Souris, Kavanagh, (dissenting). agree I with J. Justice Black, judgment was that this accelerated accelerr Souris process. any of due too much for semblance ated glaring part, at' least borders If not summary judgment gone picture developing metropolitan circuit. mad our given thought rather to have been seems elementary principle that one of several benefi- right of a of action ciaries destroy defensively the statu- here, as claimed
not, right tory eliminate himself—in more than or do beneficiary part and distributee or in whole —as writing right. thus Brethren As said such per- decedent’s widow and this this decedent’s far, .separate en- are distinct sonal right pleaded One is concerned. far as so tities statutory statutory all and for trustee of is a 21). Quimby, (MacDonald 350 Mich beneficiaries expired and time the decedent of the as other, redemption time of *13 379 Mich Dissenting Opinion by Black, J. compensation law, was one of simply those bene * ficiaries.
There also matter of little that damages be on recovered behalf of the decedent’s estate. These are allowable to statutorily the decedent’s personal such, the benefit of estate 691.582 1948, § Ann 1959 Cum [Stat PA No Supp 27.712]); 1961, § 236, (CLS 1961, § § 600.2922 Ann 1962 Rev 27A.2922]), [Stat § amend- ed PAby (Stat No 146 Ann 1965 Supp Cum 27A.2922), subject and are not release or other anyone acquittance by excepting upon proceedings had in with conformity the cited act of 1965 or its PA derivative, CL amending 702.115 Ann 1965 (Stat Supp Cum § 27.3178[185]). particular One fact in out stands from this record. have It should dictated denial of prompt this motion for accelerated It is that judgment. the parties are that agreement in plaintiff’s complaint alleges what all three courts must presently accept as true, is:
“Plaintiff averred that decedent left not surviving his wife only (plaintiff administratrix), sustained but also a. son and who daughter, as a result of defendants’ negligence.”
Ayers
Genter,
this case. Stat [*] CL Ann Cum 411.1 et Supp seq., as amended seq.). Reporter. (Stat Ann 1960 Rev and