232 N.W. 201 | Mich. | 1930
This is a suit at law in which plaintiff seeks to recover damages incident to the death of her minor son, Louis Kozma, while in the employ of the defendant. A motion to dismiss was granted and plaintiff reviews this ruling by writ of error.
Plaintiff's intestate at the age of 20 sustained an accidental injury arising out of and in the course of his employment which resulted in his death. Thereafter Roza Sotonyi, plaintiff herein, applied to the department of labor and industry for an award of compensation to her as a dependent. Upon hearing before a deputy commissioner an award was made to the petitioner. On application of the defendant, there was review by the full board *395 and the award of the deputy commissioner was set aside and compensation to plaintiff denied. After this determination and without review thereof, plaintiff filed her declaration in the instant case. The facts above noted in this paragraph were alleged in plaintiff's declaration. Defendant appeared specially and moved to dismiss, assigning as grounds in support of its motion the following:
"(1) It affirmatively appears from the allegations in said declaration that the deceased, Louis Kozma, and this defendant were, at the times in said declaration mentioned, both subject to the provisions of the so-called workmen's compensation law of the State of Michigan, * * *.
"(2) It further affirmatively appears from the said declaration that plaintiff herein, as an alleged dependent of said Louis Kozma, did heretofore file a claim for compensation under the said workmen's compensation law and did submit said claim for arbitration to the department of labor and industry in the manner provided in said law * * * (and) the action of said plaintiff in submitting said claim for arbitration under the said law constituted * * * (an) absolute bar to this present action."
Plaintiff alleged in her declaration that the death of her minor son was brought about by the willful negligence of the respondent; and it is her claim that by reason thereof she is entitled to recover double damages and that the department of labor and industry has no jurisdiction to hear and determine the issue presented. This position is not tenable. Plaintiff's decedent was not employed in violation of the so-called child labor law. 2 Comp. Laws 1915, § 5330 et seq. It conclusively appears she elected her forum and pursued her remedy before the commission to a final and adverse conclusion. *396
She is bound thereby. 2 Comp. Laws 1915, § 5488; Varga v.Detroit Edison Co.,
WIEST, C.J., and BUTZEL, CLARK, McDONALD, POTTER, SHARPE, and FEAD, JJ., concurred.
