*1 v. NAFI CORPORATION. MORAN Compensa- and Wife—Loss of Consortium —Workmen’s Husband tion Act. injured during the course by employee, Action wife employer, alleged negligenee of by employment, reason of of ex- view for loss of consortium ordered dismissed employees provided injuries for to clusiveness of 1948, (CL §411.4). (Horace W.), Wayne; Appeal J. from Gilmore (Calendar February No. 5, 1963. Submitted July 49,693.) 1963. No. Decided Docket Corporation, against Nafi Moran Lena C. Case corporation, for loss for a employ while husband, consortium Defendant to dismiss denied. of defendant. Motion appeals. instructions remanded with Reversed and grant to motion dismiss. Wenger, plaintiff. for
L. Edwin Haggerty, & Herr Tonkin Vandeveer, Doelle, Mayer, (.Stanley Thomas coun- E. Beattie and G. sel), for defendant. February this Court J. On O’Hara, participating, with 1 Justice
a 4-to-3 decision
in Headnote
References
Points
Jur,
Compensation
58.
Am
Workmen’s
common-law action
precluding
Compensation Act
Workmen’s
injured employee.
law, consortium action- properly if able asserted. April plaintiff
On wife, the instant case, filed her declaration and asserted her cause of arising permitted action decision. or at least that from, under, important However, exist differences between this Montgomery. Montgomery, plaintiff- case and wife sued a tortfeasor otherwise unrelated to her plaintiff injured husband. Here wife seeks for loss and from her invasion consortium hus- employer against band’s whom an award had been compensation entered commission an husband, award carried additional weekly dependency. reason of benefit her $3 regard We do not the additional benefit as $3 controlling. plaintiff If has an action her own right against employer, maintainable her husband’s despite receipt benefits, 3 addi dependency tional crement will not him dollars a week to a as in it. defeat of action we question deal is here is hers- and hers alone. The neither what he nor for what he receives, receives question it. The real is whether the work only men’s act is of the declarative rights of the workman, or whether it legislatively to limit intended of the em ployer payments to of any schedule therein contained, person against to bar action other him See CLS § 412.9 (Stat Ann 1960 Rev 17.159). Reporter. — employee, an to the where the result of employee’sright determinable act.2 in this to dismiss does not
Defendant’s motion question sufficiencyof dec- of the case raise stating for loss of con- a cause of action laration Montgomery. For that term is defined sortium as pass upon that here do not issue reason we may be in a case wherein leave it for decision presented. inquire must whether case, first,
In this
squarely
point
Michigan
trolling
ary
con-
decision is
Febru-
before
issue. Cases decided
of the
for the
25, 1960, cannot decide
that we deal with a
reason
rather obvious
which was
recognized
prior
in this
to that
State
Mont-
no case between
issuance date of
date, and
*3
gomery
present
nor
our
been
has
cited,
and the
has
deal then
one which controls. We
research revealed
impression.
of first
with
case
controlling,
Michigan
next
our
no
case is
Since
jurisdiction
step
in our
those cases
is to examine
by analogy
applicable
cases
which are
—those
rights
than the
asserted
others
deal with
yet
separate
grow-
action,
in a
employee.
ing
the accidental
out
precisely
point,
Again,
cited
none of
cases
is
with
that we deal
noted,
for the reason
before
right.
unrecognized
previously
have
a
carefully
We
studied
category
urged
in this
cited and
the cases
They
appellant
legislative
intent.
as indicative of
separate (so-called) rights or
true,
is
involve,
case cited
action. Yet
each
causes of
underly-
of
with the
action is intertwined
the cause
concept
support
ing
of
a loss thereof. As noted
concurring
distinguished
Justice
his
our
Chief
[2]
See
quotation
of
section,
post. Reporter.
—
539
Corporation.
Nani
v.
Corp., 219
of Wall v. Studebaker
opinion, the ease
on the ex-
of
view
onr settled
434,
reflective
question.
clnsivity-of-remedy
controlling,
analogous
turn
those of sister States.
cases cited
Federal
to the
(CCA 6),
Education
Flint Board
Fernandez v.
infirmity
subject
as some
same
to the
906,is
F2d
283
Michigan,
repre
personal
case,
In that
cases.
pecuni
sought to recover
deceased
sentative
ary
ily
already specifically
statutor
included
compensation act3
our
in the death
benefit
recovery.
clearly
double
constituted
and thus
notably
cases, however,
Other Federal
Hitaffer
(183
Argonne
App
23
Inc.,
811,
57
F2d
87
DC
May
1366),
certiorari de
29, 1950,
decided
ALR2d
(71
624),
L95
October
80,
nied
540 permitted Yet the wife to recover for loss Hitaffer employer. against the of consortium years A But was short-lived. brief 7 Hitaffer again was before the same court. later Company, supra. Inc., Coles, & Smither This See 9-judge panel sat, full en bane. time the The com- changed plexion Judge had the Court somewhat. Judges who wrote was deceased. Clark, Miller and Hitaffer Fahy who had were concurred, still mem- specifically a bers. 6-3 decision Hitaffer Judge changed opinion; Judge overruled. Miller Fahy, Edgerton, Judge Judge Chief Bazelon joining, held for the rule announced in Hitaffer. longer Thus the latter case is no law and under the longshoremen’s right more exclusive towife act, the employer recover from husband’s is not now recognized.4 carefully pre-
Be it noted that Smither not does challenge of a to tend wife general concept. loss consortium as or basic assertability challenges Rather it against of that employer where Federal act above long- mentioned obtained. supra, fairly act, read, shoremen’s is much more exclusionary congress than ours, for thereunder clearly unequivocally excluded actions anyone against wife or else where was covered the act. afloat never it as unsound.” 5), support. reversed. And exclusive rejected case. Co. denied 276 F2d “On this (1950), F2d [Brown it as On the 106).] And US really score, really unsuitable at US v. Curtin & Thibodeaux v. J. p its, contrary, all that App (71 got short life it exclusive. But it was not S Ct DC 57 underway. (hence inapplicable) Johnson, every plaintiffs (183 95 L ed never,- Ray State and Federal long F2d Within 5 Inc. McDermott Hitaffer until on this have 624), (1955), it was abandoned and is Hitaffer 23 ALR2d years point, while launched and transport & did its architects attracted App case 1366), Inc. hold Argonne rejected DC 234 a death (CCA cert *5 Corporation. v. Nafi that if the assertion consider must Next, consortium is for loss of action cause husband’s barred like- so act, by our workmen’s postulate this not consider doWe wife’s. wise is principle on the is based This assertion tenable. that injury may receiving party not where receiving an incidental the one tort, recover consequential may injury That rule not recover. injury in the sense “derivative” is concerned that the derivee’s prin- because is barred action of the reasons cipal’s insufficiency in tort for action is barred action, the main tort of the elements replaced by tort here, because not, payments recovery for without scheduled proof never reach fault. We principal’s maintainability tort action in this of the infirmity is not assert he can’t it. case because in the elements of because action, his cause of but recovery legislatively has been substituted another for apply, analogy The asserted does it. consequential no settled law the field we disturb recovery so to hold.
Appellee that in the examination of the contends jurisdictions, holdings from other the classifications Compensation Law, Larson, in 2 Workmen’s set out helpful. agree. is at once accurate We 66.10, typ categories are first the These “Massachusetts” only employee coming e—the broadest where rights against within the act his common-law waives (Mass employer. 152.) Gen ch The narrow L, group exclusionary and most the “New York” est is (as longshoremen’s act we heretofore also the have mentioned). group, explicit This terms and name personal representatives, wives, husbands, excludes everyone dependents, and else. believe We rightly grouping is included a third “Cali —the type fornia” under the which makes the workmen’s without “exclusive” but -- Michigan Reports. [July- may particular who enumeration those not main- actions. tain cases cited to us nor in our
Nowhere re- precedent do find disclosed, we the assert- search *6 ability against the cause of for loss of consortium of husband’s workmen’s
the cov- comparable an act ered to ours. question persuaded determining that in We are the presented, general here the the late, observation of great Brandéis in liberal, Justice Electric Bradford Clapper, Light Co., Inc., v. 286 82 ALR 159 US S Ct 696) helpful. L 571, 576, ed distinguished Though jurist Bradford really discussing of whether the action properly brought there involved was or Vermont Hampshire, capsulized philos- socio-legal New he ophy underlay that of enactment workmen’s com- pensation generally, following laws in the incisive language: purpose [the “For the of Vermont work- compensation act],
men’s as workmen’s com- of pensation respect provide, States, laws most other is to of persons residing located in businesses only employees remedy for State, a which is expeditious independent proof both of of fault, employers liability a also but which is limited and for (Emphasis supplied.) determinate.” appraisal brings a We fair believe our act purpose within definition of Justice Brandéis. legislature produce We believe the intended, first, to remedy for workman the nature of compensation. only act, the title of our the word “compensation” appears where the award to employee legislature, is limited. The and we think to the “An aet to employees, providing compensation PA 1912 promote (1st Ex employers the welfare of Sess), injuries for the as amended people or disability death of this sustained or death PA State, relating No 61. [*] their [**] Napi Corporation. Moran recovery limiting the final clause significantly, in the “damages” employer, the word included against the restricting the phraseology following “and in the such provided by this act.” ¡ are as only under the to the award Since compensation, the inclusion in the nature act is “damages” clause in the title restriction permit legislative intent to to indicate would seem only recovery authorized. if the act so 6 again limitation. The to this adverts Section reads: section j liability under this act the conditions of “Where recovery to the bene- exist, the provided, exclusive herein shall be the fits, as (Emphasis supplied.) employer.” against the section and the title of the act, Under the above previously broadening we believe discussed, *7 recovery against the as a result the of base by an an at law of industrial to include action person must, authorized, if it is to be other be by legis- legislative the authorized action. We hold ju- expressed precludes intent in the act the lative by plaintiff dicial construction contended for and adopted by judge. learned trial the denying motion
The order defendant’s to dismiss to is vacated and the case remanded the circuit court grant with to the motion to instructions dismiss. being of a involved.. costs, construction statute Souris, JJ., Black, concurred with and Kavanagh, O’Hara, J. employ (concurring). Carr, C. J. While plaintiff’s corporation husband sus- the defendant such as are and CL restricting provided 411.4 right (Stat this act.” to Ann 1960 Rev § compensation or 17.144). damages in to a physical injury disability tained for which causing provisions he received law State.* for al Plaintiff suit for brought damages present claim loss of her on leged consortium, basing Mich Stephan, case of v. affirma Montgomery motion tively defendant’s to dis asserting reply that she of action granted miss had been decision, provisions said and that of the workmen’s act of the State did suit. operate bar her The circuit before judge whom the motion to dismiss was heard entered an order leave denying it, granted on defendant has appealed.
Prior to Montgomery Stephan, v. 4- was a to-3 decision, an action for for loss of con- sortium on behalf either spouse had not been recognized virtue of stat- existing ute law, law, common or judicial decision. Such in Blair was denied v. Seitner Dry Goods 304 (LRA 1915D, 524, Ann Cas 1916C, 882); v. Harker 254 Mich Bushouse, 187; Bugbee 277 Mich That Fowle, weight authority throughout country accord the previ- ous holdings this is not open question. Court Under the common law married woman could not such an maintain action courts. That English causes be created may by legislative au- may likewise thority, abolished, be is not open to but question, such measure of authority is not within scope of the proper functions of judiciary. In the Montgomery dissenting opinion Stephan we set forth at some our length reasons for *8 with disagreeing by action the creating Court cause for suit here It is unnecessary involved. to repeat Supp et [*] seq., PA § 17.141 et 1912 as amended (1st seq.]). Ex Sess), TStat Ann 1960 No 10, as amended Rev and Stat (CL 1948, Ann 1961 Cum §411.1 Napi Corporation. question what was there The at said. issue should given careful reconsideration. For the be there advanced reasons
plaintiff instant case was by entitled to maintain the action instituted her in judge circuit and the circuit to whom the mo- court, tion to dismiss was submitted should have so held. holding
We are in accord with of Mr. Justice rights granted by that the O’Hara employee act to an who sustained an employ- injury arising out of of his course provision ment are exclusive. The of the title re- stricting provided by sig- to such are the act is as (CL § §411.4 [Stat Part Ann
nificant. 17.144]), the intent in- 1960 Rev dicated accord section reads as follows: by the title. Said this act conditions “Where recovery bene- exist, the provided, shall be the exclusive as herein
fits, employer.” against the Permitting the maintenance of actions dam employee ages is en in instances where compensation under the received, and has to, titled express clearly at would be variance with statute legislature. an in as enacted Such dependent terpretation that a or other would mean disability person claiming sus because might employee maintain suit to re tained of such character was involved in cover. issue Mich Detroit-Timkin Axle Mackin v. ambigu pointed in somewhat out Court squarely language. however, was, ous Corporation,
presented in Wall v. Studebaker parent of a minor injuries compensation for sustained in who received brought employment of the son’s for loss suit wages parent claimed he was entitled. to which the *9 Michigan _
The Court quoted with approval part 1, of the 4,§ statute it then read, stated (p 436): “We think that the plain language this statute clearly indicates that it intention of the legislature abrogate parent’s for loss of services of his minor child while employed the compensation act.” Varga De case was cited and in followed v. troit Edison 240 Mich 593. accord of the court of the circuit appeals sixth Flint Education, Fernandez v. Board 283 F2d 906. Of interest are also of the Illinois opinions Wangler Boiler Industrial supreme Co. v. court Commission, NE 366), and Faber (122 287 Ill 118 Commission, Industrial 352 Ill NE 255), of the appearing provisions Illinois stat ute are analogous to those of the act.
For indicated, reasons re- concur versal of'the order from which the appeal has been taken.
Dethmers and Kelly, JJ., concurred with Carr, C. J.
Smith, (concurring). J. I concur the results for the reasons set forth in my Balcer opinion Leonard Refineries, Inc.,