Jordan v. CA Roberts Company , 379 Mich. 235 ( 1967 )

Adams, J.

John C. Jordan, husband of plaintiff, was killed'on September 28, 1960, while attempting to repair a crane owned by C. A. Roberts Company. In proceedings before the workmen’s compensation department in February, 1961, Thelma Jordan represented that she was the widow and sole dependent of John C. Jordan, deceased, and she and C. A. Roberts Company represented that “John C. Jordan was an employee of C. A. Roberts Company and on or about September 28, 1960, he received an injury arising out of and in the course of his emr ployment.” On February 24, 1961, a redemption order was entered by a hearing referee. Liability was redeemed for $6,774.

On June 25, 1963, Thelma Leola Jordan, administratrix of the estate of John C. Jordan, deceased, commenced this suit for wrongful death, alleging that John C. Jordan was killed as a result of the negligence of the defendants and that he left surviving him a wife, a son and a daughter who sustained damages as a result of defendant’s negligence. The trial judge held:

“In making the claim and receiving workmen’s compensation, the plaintiff administratrix had to establish to the satisfaction of workmen’s compensation commission that her husband was an employee of the C. A. Roberts Company. Having made that determination and then having had a redemption order entered, the plaintiff is bound by such determination. No appeal was taken from the compensation proceedings, and its finding* having become final and unappealed from, is res judicata. It may not now be attacked by the plaintiff herself who has received benefits through the workmen’s compensation proceeding.”

Motion for accelerated judgment in favor of defendant C. A. Roberts Company prior to trial was granted. From affirmance thereof by the Court of Appeals, appeal has been taken to this Court by-leave granted.

The Court of Appeals stated the issue as follows:

“Does a workmen’s compensation redemption order, followed by acceptance and payment thereunder, from which no appeal has ever been taken estop the beneficiary, or others, from collateral attack on findings necessary to validity' of said order?” 2 Mich App 113, 114.

While we agree with the conclusion of the trial judge and of the Court of Appeals, we predicate our decision upon the nature of the remedy under the workmen’s compensation statute rather than upon an estoppel or a holding that the decision of the workmen’s compensation department was res judicata. .

I.

Some of the confusion in this case arises from the fact that Thelma Jordan, widow and sole dependent of John C. Jordan, deceased, was a party to the proceedings before the workmen’s compensation department and Thelma Leola Jordan, administratrix of the estate of John C. Jordan, deceased, is the plaintiff in this present action. Thelma Jordan, party to the workmen’s compensation proceedings, acted in her own individual right by virtue of the provisions of the compensation act. CL 1948 and CLS 1961, § 411.1 et seq. (Stat Ann 1960 Rev and Stat Ann 1963 Cum Supp §17.141 et seq.). Thelma Leola Jordan, administratrix of the estate of John C. Jordan, deceased, is the legally appointed representative of John C. Jordan, deceased, suing in her representative capacity for wrongful death by virtue of the provisions of the wrongful death statute. CLS 1961, § 600.2922 (Stat Ann 1962 Rev § 27A.2922). She brings such an action-for the benefit of those persons who are entitled to share in a recovery — in this case, it is claimed, John C. Jordan’s wife, two children and his creditors. Legally there is no identity whatsoever between the above parties. They are complete strangers.

There being no identity of the parties,, the doctrine of res judicata is inapplicable. 170 ALR 1181; Tucker v. Rohrback (1864), 13 Mich 73; Bankers Trust Company of Muskegon v. Forsyth (1934), 266 Mich 517; Reid v. Gooden (1937), 282 Mich 495; Gumienny v. Hess (1938), 285 Mich 411; Sovereign v. Sovereign (1958), 354 Mich 150, 154; Giegling v. Helmbold (1959), 357 Mich 462, 465.

II.

Since in the eyes of the law Thelma Jordan, widow of John C. Jordan, deceased, and Thelma Leola Jordan, administratrix of the estate of John C. Jordan, deceased, have a separate existence, there cannot have been an election of remedies. An election involves a decision by one and the same person or entity.²

III.

The workmen’s compensation act gives certain statutory benefits to employees and their dependents. The wrongful death act supplies a cause of action for damages in cases of wrongful death.

In Moran v. Nafi Corporation (1963), 370 Mich 536, 545, 546, this Court construed the provisions of the workmen’s compensation act to provide an exclusive remedy:

“Permitting the maintenance of actions for damages in instances where the injured employee is entitled to, and has received, compensation under the statute would clearly he at variance with the express language as enacted hy the legislature. Such an interpretation would mean that a dependent or other person claiming injury because of disability sustained by the employee might maintain suit to recover. No issue of such character was involved in Mackin v. Detroit-Timkin Axle Co., 187 Mich 8, as was pointed out by the Court in somewhat ambiguous language. The question was, however, squarely presented in Wall v. Studebaker Corporation, 219 Mich 434, in which the parent of a minor employee who received compensation for injuries sustained in his employment brought suit for loss of the son’s wages to which the parent claimed he was entitled. The Court quoted with approval part 1, § 4, of the statute as it then read, and stated (p 436):

“ ‘We think that the plain language of this statute clearly indicates that it was the intention of the legislature to abrogate the parent’s right of action for loss of services of his minor child while employed under the compensation act.’ ”

For a recent discussion by this Court of the nature of the remedy, see, also, Husted v. Consumers Power Company (1965), 376 Mich 41, 52-56. Once there has been an adjudication of the rights of parties under' the workmen’s compensation act, that remedy becomes the exclusive one.

Plaintiff contends that the exclusive nature of the remedy under the act applies only when there has been a contested adjudication of rights. Such a holding would be contrary to the provisions of the act:

“Where the conditions of liability under this act exist, the right to the recovery of compensation benefits, as herein provided, shall be the exclusive remedy against the employer.” CL 1948, § 411.4 (Stat Ann 1960 Rev § 17.144).

“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, or 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.” CL 1948, §416.1 (Stat Ann 1960 Rev §17.212).

The above provisions of the act were construed by the United States court of appeals, 6th Circuit, in Pfeifer v. GMG Truck & Coach Division (CA 6, 1958), 255 F2d 40. In that case the mother of the decedent received a compensation award as a dependent. The court of appeals held that the district court correctly dismissed an action against the employer by decedent’s administrator for wrongful death. For the same holding, see, also, Gray v. Brown & Sehler Co. (1918), 200 Mich 177.

Care should be taken to note that not all so-called proceedings under the workmen’s compensation act are such as to make the act the -exclusive remedy. Payment of voluntary weekly compensation benefits does not constitute a determination of employee status under the act so as to bar an action for negligence. Chaffee v. Steng.er (1960), 361 Mich 57. Acceptance of benefits voluntarily paid and a subsequent attempt to obtain an award of compensation were held not to bar a suit,for négligence by a person in fact having the relation of an independent contractor. Holcomb v. Bullock (1958), 353 Mich 514. Where a minor is illegally employed, so as not to come within the provisions of the workmen’s compensation act, it does not apply'so, as id bar a suit for negligence even after a purported settlement which was approved by the industrial accident board. . Grand Rapids Trust Co. v. Petersen Beverage Co. (1922), 219 Mich 208. See, also, Brabon v. Gladwin Light & Power Co. (1918), 201 Mich 697.

In Viaene v. Mikel (1957), 349 Mich 533, where an injured employee mistakenly brought an action for damages, he was held not to be precluded from making.claim for workmen’s compensation.

The determination of the proper forum must initially he made by one or more of the interested parties. If proceedings are had under the workmen’s compensation act resulting in a determination of jurisdiction from which no appeal is taken, by the adverse party, such action may be raised by the employer in bar where a suit is subsequently begun against him under the death act. It is in the nature of an affirmative defense and, if raised, is not subject to collateral attack as to proceedings before the' workmen’s compensation department.

In the present case, the unappealed order of the hearing referee constitutes a final and conclusive determination of the liability of the defendant arising out of the death of John C. Jordan. The decision of the Court of Appeals, for the reasons herein stated, is affirmed. Costs to the appellee.

Dethmers, C. J., and Kelly and O’Hara, JJ., concurred with Adams, J.

2 It may be noted that the treatment of similar eases in terms of election of remedies occurred when there was an identity of parties. See Smith v. Port Huron Gas & Electric Co. (1922), 217 Mich 519 (21 NCCA 401), decided before the amendment to section 15 of part 3 of PA 1912 (1st Ex Sess), No 10, by PA 1952, No 155 (CLS 1961, § 413.15 [Stat Ann 1960 Rev § 17.189]).