Vereeke v. City of Grand Rapids

203 Mich. 85 | Mich. | 1918

Brooke, J.

(after staling the facts)'. Section 15 of part 3 of the workmen’s compensation law (2 Comp. Laws 1915, § 5468) provides:

“Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, 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,' and if compensation be paid under this act the employer may enforce for his benefit or for that of the insurance company carrying such risk, or the commissioner of insurance, as the case may be, the liability of such other person.”

Section 1 of part 6 of said law (2 Comp. Laws 1915, § 5488) reads as follows:

“If the employee, or his dependents, in case of his death, of any employer subject to the provisions of this act files any claim with, of accepts any payment from such employer, or any insurance company carrying such risks, or from the commissioner of insurance on account of personal injury, or makes any agreement, or submits any question to arbitration under this act, such action shall constitute a release to such employer of all claims or demands at law, if any, arising from such injury.”

Under these two sections it is the claim of defendant city that the industrial accident board was in error in permitting claimant to retain the sum received by her in settlement of the suit at law against the Grand Rapids-Muskegon Power Co. and at the same time compel it, the defendant city, to continue payments to claimant as compensation under the act. This it is said amounts to double compensation to the claimant and should not be permitted. It is true that under section 15 of part 3 above quoted, the employee himself must make an election and cannot proceed against his employer for compensation and against a third party, the wrongdoer, for damages, and it is equally true that when the employer pays compensation he is empowered under the same section to recover such sums as he pays from the wrongdoer for his own benefit. Neither the section under, consideration, however, nor section 1 of part 6 (2 Comp. Laws 1915, § 5488) contains any limitation upon the rights of dependents except that, under section 1 of part 6, a dependent who accepts compensation from an employer releases to said employer all claims or demands at law, if any, arising from such injury. We think it cannot be contended that Kate Vereeke, by accepting compensation from the city of Grand Rapids, thereby released the Grand Rapids-Muskegon Power Co., the alleged wrongdoer, from liability in an action for the benefit of heirs at law or creditors of David Vereeke. By making a claim for compensation against the employer, the defendant city, she clothed that employer under the terms of section '15, part 3 (2 Comp. Laws 1915, § 5468), with a right of action against the wrongdoer. Had that right of action been prosecuted by the city recovery thereupon would certainly have been taken into consideration in awarding damages in a suit instituted by the administrator of the estate against the alleged wrongdoer. Having failed to protect its rights in the manner pointed out by the statute we are of opinion that the appellant city cannot now by petition to the industrial accident board have credited upon the award against it any sums received by Kate Vereeke as a result of the suit against the power company.

Judgment must be affirmed.

Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.