Ayers v. Genter

• Decision Date: 20 September 1962
• Docket Number: 16,Nos. 15,s. 15
• Citation: 367 Mich. 675,117 N.W.2d 38
• Parties: Earl E. AYERS, Plaintiff and Appellant, v. Clyde C. GENTER, Defendant and Appellee. Roger L. ANDERSON, Plaintiff and Appellant, v. Clyde C. GENTER, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 38

117 N.W.2d 38

367 Mich. 675

Earl E. AYERS, Plaintiff and Appellant, v. Clyde C. GENTER, Defendant and Appellee.

Roger L. ANDERSON, Plaintiff and Appellant, v. Clyde C. GENTER, Defendant and Appellee.

Nos. 15, 16.

Supreme Court of Michigan.

Sept. 20, 1962.

Mitts, Smith, Haughey & Packard, Grand Rapids, for plaintiffs and appellants.

Charles H. Menmuir, Traverse City, for defendant and appellee.

Before the Entire Bench.

SMITH, Justice.

As general contractor, defendant Genter entered into a contract with a school district in Mason county to construct a new addition. The Ayers Plumbing and Heating Company, of which the plaintiff Ayhers is a co-partner and plaintiff Anderson is Company, of which the plaintiff Ayers gallon fuel oil tank underground outside the school as part of the school's heating system.

On the morning of February 9, 1957, plaintiffs attempted to excavate a hole for installation of the tank by using a crane shovel. However, the shovel was unable to penetrate the frozen surface of the earth. Just as the parties were about to abandon the project for that day, defendant Genter arrived on the scene and suggested dynamiting the frozen earth. Having had prior experience in the use of explosives, defendant Genter assumed some direction of the dynamiting operation. As plaintiff Ayers and Genter were sharpening a drill, an explosion occurred, seriously injuring all litigants. Apparently, sparks from the grindstone set off certain dynamite caps which were on the ground nearby.

Following the accident, both plaintiffs accepted benefits from the workmen's compensation insurance carrier for Ayers Plumbing and Heating Company. The defendant Genter also submitted a claim against the Ayers firm, which was contested on the ground that he was not an employee of Ayers at the time of his injury. The workmen's compensation appeal board sustained an award to Genter; leave to appeal was denied by this Court.

Plaintiffs then proceeded to file respective negligence actions against the defendant Genter. Relying upon the findings of the workmen's compensation appeal board that he, Genter, was in fact an employee of the Ayers firm, and also on our decision in Sergeant v. Kennedy, 352 Mich. 494, 90 N.W.2d 447, that a employee may not sue a co-employee in tort for injuries sustained in circumstances otherwise compensable under the compensation act, the defendant filed a motion to dismiss and then later moved for summary judgment in both actions.

The trial court granted summary judgment against both plaintiffs but on different grounds. In the Ayers case the Court ruled a prior determination that the defendant was an employee could not be relitigated between the parties; and since no other question of fact was involved plaintiff was barred by the decision in the Sergeant case. After reviewing defendant's motion for summary judgment in the Anderson suit, the affidavits in support thereof, and pretrial depositions, the trial court concluded that the defendant would have been entitled to an instruction to a jury that the defendant and Anderson were co-employees at the time of the explosion. Hence, under this ruling, the plaintiff Anderson was considered also barred by part 3, § 15 of the compensation act. C.L.S.1956, § 413.15 (Stat.Ann.1960 Rev. § 17.189), as interpreted in the Sergeant Case. Appeal is taken from the judgments entered in both actions. Since the issues raised in behalf of respective plaintiffs differ somewhat, we shall consider the claims seriatim.

In behalf of plaintiff Ayers, argument is raised that the decision of the workmen's compensation appeal board concerning the defendant's status as an employee is not res judicata in a subsequent personal injury action between the parties. It is clear that in this jurisdiction the doctrine of res judicata is applicable to a decision rendered in workmen's compensation proceedings. Lumbermen's Mutual Casualty Co. v. Bissell, 220 Mich. 352, 190 N.W. 283, 28 A.L.R. 874; American Life Insurance Co. v. Balmer, 238 Mich. 580, 214 N.W. 208; Besonen v. Campbell, 243 Mich. 209, 220 N.W. 301; Hebert v. Ford Motor Co., 285 Mich. 607, 281 N.W. 374. Nonetheless, Ayers claims that the doctrine has no application to his present tort action because the issues raised before the trial court are more numerous than the question determined by the appeal board. He also argues that he is now suing in his own personal right, whereas he was a party in the workmen's compensation proceeding as a member of the partnership. Although many authorities seem not to distinguish the two principles, collateral estoppel rather than res judicata herein governs. Granting that issues raised in the tort action may be more numerous, it was adjudged previously that the defendant Genter was an employee of Ayers at the time of his injury. As to this particular issue, plaintiff Ayers is now estopped from relitigating it. Jones v. Chambers, 353 Mich. 674, 91 N.W.2d 889; Besonen v. Campbell, supra.*

Another question posed by appellant Ayers may be stated as follows: Is a copartner of an employing partnership firm barred by the workmen's compensation act from suing, as an employer, an employee of the partnership firm for damages in tort for injuries arising from the same cause for which compensation is payable under the act to such copartner as an employee of the partnership firm?

Absent statutory sanction a working partner is not normally considered an employee of a partnership. The conceptual difficulty of considering a partner both employer and employee has led almost every court to deny compensation. Brewer v. Central Construction Co., 241 Iowa 799, 43 N.W.2d 131. Also 58 Am.Jur., Workmen's Compensation, § 146, p. 677; 3 Schneider, Workmen's Compensation, (1943), § 812; Horovitz on Workmen's Compensation (1944), pp. 198, 199; 1 Larson, The Law of Workmen's Compensation (1952), § 54.30. Be that as it may, Michigan has specifically provided by statute that a working partnership member may be regarded as an employee. C.L.S.1956, § 411.7(2) (Stat.Ann.1960 Rev. § 17.147). His status as an employee under the act has been further clarified by court decision. Gallie...