203 N.W. 879 | Mich. | 1925
Lead Opinion
Frank A. Muehlenbeck, while hauling stone for Ederer Company, met his death in a collision between the truck he was driving and a Michigan Central railroad train on October 9, 1923. Carl A. Muehlenbeck, a brother of the deceased, was appointed administrator of his estate by the probate court of Saginaw county.
On November 23, 1923, the administrator filed the following petition in the probate court:
"Your petitioner respectfully represents that he is duly appointed and qualified administrator of the estate of Frank F. Muehlenbeck, who met death on October 9, 1923, at Swan Creek, Michigan, as the result of a collision between an automobile in which he was riding and a train of the Michigan Central Railroad Company.
"That the said company, while denying all liability in the matter, has offered and is prepared to pay in settlement the sum of five hundred dollars ($500).
"That your petitioner has investigated the facts of the accident, and believe said offer to be fair and for the best interests of the estate to accept the same.
"Wherefore, your petitioner prays your honorable court to authorize him to accept and receive the said sum of five hundred dollars ($500) and to execute a release in full acquittance of all claims against said company for injuries suffered and death sustained by said deceased."
On the same day an order was entered by the court, reading as follows: *3
"On reading and filing the petition of Carl A. Muehlenbeck, administrator of said estate, praying that he be authorized to compromise and settle a certain claim he holds against the Michigan Central Railroad Company for the sum of five hundred dollars ($500) and it appearing to the court that it would be for the best interests of said estate, it is ordered that said administrator be, and he is hereby authorized to accept and receive said sum and to execute a release in full acquittance of all claims against said company for injuries suffered and death sustained by said deceased, upon payment to him as such administrator, of the sum of five hundred dollars ($500)."
The $500 was paid to the administrator by the railroad company, and he executed a receipt and release pursuant to the terms of the order, and afterwards turned the money over to the duly appointed guardian of the minor son of the deceased.
On December 10th following, the administrator filed a claim for compensation under the workmen's compensation act, a report of the accident having theretofore been made by Ederer Company. A petition for the hearing of such claim was filed, signed by both the administrator and the guardian. Compensation was denied by the deputy commissioner. On review, the board awarded compensation for 300 weeks at $14 per week, together with funeral expenses. This award the defendants review by certiorari.
The defendants claim that the petition filed in the probate court, the order made thereon, and the release executed pursuant thereto establish an election to proceed against the wrongdoer, and operate as a bar to this claim for compensation. The conclusion reached by the department is thus stated:
"Respondents contend that applicant has elected to proceed against the Michigan Central Railroad Company, the third party responsible for the accident in this case. The administrator of the estate received a $500 settlement from the railroad company and the same was turned over to the applicant's guardian. *4 The administrator testified that this $500 settlement was for the damage to the truck owned by deceased. The petition for permission to make the settlement and the order of the probate court indicates that it was made for the injuries suffered and death of deceased but the administrator stated he had no intention of settling for the death of deceased, but rather for the damage to the truck."
The finding as to the intention of the administrator is based on his testimony as follows:
"Q. In reference to this paper, this typewritten paper Exhibit 1, signed by C.A. Muehlenbeck, administrator, how did you happen to sign that? * * *
"A. Well, the railroad company man wanted to settle for the loss on the truck and it was settled in the judge of probate office.
"Q. You had nothing to do with the preparing of the paper?
"A. Absolutely not.
"Q. Was it prepared by the railroad people themselves?
"A. I imagine it was.
"Q. What did they say to you, if anything, if you didn't take five hundred dollars you would not get anything?
"A. Well, we could either take five hundred dollars or nothing."
No mention was made of an injury to the truck in either the petition, order or release. The guardian, in answer to a question put to him by the deputy commissioner, "Was that five hundred dollars paid on account of the accident to your son?" answered "Yes."
In City of Grand Rapids v. Crocker,
"That in case of the death of the employee the dependents may elect to proceed against the wrongdoer *5 or to take compensation under the act; that an election to take under the act is a bar to an action brought by an administrator against the wrongdoer."
It necessarily follows that if the administrator elects to proceed against the wrongdoer and makes settlement with him, after due authorization from the probate court, he may not proceed against the employer under the act. LaLonde v. JennisonHardware Co.,
The proceedings in the probate court, followed by the execution of the release by the administrator, constituted an election to proceed against the railroad company, and barred the right of the defendant to recover compensation under the act. Had the settlement been procured by fraud, it might have been set aside in a suit in equity brought against the railroad for that purpose. But, founded as it was upon a court procedure, it may not be attacked in this collateral proceeding.
A somewhat similar question was presented in Smith v. PortHuron Gas Electric Co.,
Under the holding in City of Grand Rapids v. Crocker, supra, the employer or company carrying its risk, if adjudged liable to pay compensation under the act, is subrogated to the rights of the administrator and may recover from the "wrongdoer to the extent of the liability imposed on him under the act." Should the award in this case be affirmed and action brought against the wrongdoer, the release executed by the administrator would be a bar thereto, and the burden would be cast on the employer to have it set aside. It is clear that it cannot be attacked in this proceeding before the commission, in which the railroad company is not a party.
The award is reversed and set aside.
McDONALD, C.J., and CLARK, STEERE, FELLOWS, and WIEST, JJ., concurred with SHARPE, J.
Dissenting Opinion
This is certiorari to the department of labor and industry to review an order made by them in favor of the plaintiff. Frank A. Muehlenbeck met his death on October 9, 1923. He was struck by a Michigan Central train while hauling stone for the defendant. Glenn Muehlenbeck is an infant and was dependent upon Frank A. Muehlenbeck, his father. Charles F. Muehlenbeck, plaintiff, was appointed guardian of Glenn Muehlenbeck (who was at the time of his father's death 10 years of age) by the probate court for the county of Saginaw. Carl A. Muehlenbeck, a brother of the deceased, was appointed administrator of the estate of Frank A. Muehlenbeck by the probate court of Saginaw county, Michigan. Negotiations resulted between the administrator and the Michigan Central Railroad Company. *7 A settlement was reached by the payment of $500 by the railroad company, which sum was accounted for by the administrator to the guardian of the child.
We quote from the brief of counsel for the appellants:
"We submit that there are two defenses, either one of which is fatal to the claim for compensation in this case, which may be stated as follows:
"First: The settlement with the railroad company actually completed, is an election which bars the claim for compensation.
"Second: Decedent was an independent contractor.
"As to the first proposition: The statute provides that in cases of liability on the part of a third party 'the employee may at his option proceed either at law against that person to recover damages or against the employer for compensation under this act, but not against both.' Section 15, part 3, compensation act (2 Comp. Laws 1915, § 5468);" citing City ofGrand Rapids v. Crocker,
The administrator was sworn as a witness. We quote some of his testimony:
"Q. In reference to this paper, this typewritten paper Exhibit 1, signed by C.A. Muehlenbeck, administrator, how did you happen to sign that? * * *
"A. Well, the railroad company man wanted to settle for the loss on the truck and it was settled in the judge of probate office.
"Q. You had nothing to do with the preparing of the paper?
"A. Absolutely not.
"Q. Was it prepared by the railroad people themselves?
"A. I imagine it was.
"Q. What did they say to you, if anything, if you didn't take five hundred dollars you would not get anything?
"A. Well, we could either take five hundred dollars or nothing." *8
In relation to this settlement the department of labor and industry expressed itself as follows:
"Respondents contend that applicant has elected to proceed against the Michigan Central Railroad Company, the third party responsible for the accident in this case. The administrator of the estate received a $500 settlement from the railroad company and the same was turned over to the applicant's guardian. The administrator testified that this $500 settlement was for the damage to the truck owned by deceased. The petition for permission to make the settlement and the order of the probate court indicates that it was made for the injuries suffered and death of deceased but the administrator stated he had no intention of settling for the death of deceased, but rather for the damage of the truck.
"In Zirpola v. T. E. Casselman,
" 'We think a cause of action for injuries resulting in death, prosecuted by an administrator against some one other than the employer, is for the benefit, not of dependents as defined, by the workmen's compensation act, but of next of kin as defined by the Code (§§ 1903, 1905), or by the decedent estate law continuing the Code provisions (§§ 133, 134). The two classes are not invariably nor perhaps commonly the same.'
"The record does not show that the applicant ever had an opportunity to elect to proceed under the workmen's compensation law or that he ever did elect not to proceed under such law. We think the settlement of $500 received by the administrator of deceased's estate could have no bearing on this case, as it manifestly was the intent of the administrator simply to settle for the damages to deceased's truck."
We think it unnecessary to express an opinion about the legal phase of this situation as urged by counsel, because the board has found as a fact that the settlement was for damages to the truck, and there was some testimony upon which to base such finding. See Solomon v. Railway,
2. Was decedent an independent contractor as *9
by counsel? They insist that the case is controlled byGall v. Detroit Journal Co.,
The facts are not in dispute. Mr. Muehlenbeck was employed to draw with a truck stone from a car to where the stone was needed in a highway under construction by J. W. Ederer
Company, a corporation. He was paid 25 cents a yard mile. He unloaded the stone where he was directed to do by the man having charge of the construction. The record does not show he agreed to deliver any specific quantity of stone; or that he was employed for any stated time. His employer did not agree that he should be employed for any stated time, or that he should deliver any specific quantity of stone. He could quit any time or be discharged at any time. We think he was an employee. Shafer v. Parke, Davis Co.,
The order of the department of labor and industry should be affirmed, with costs.
BIRD, J., concurred with MOORE, J. *10