Blust v. Mercy
| Decision Date | 08 December 1931 |
| Docket Number | No. 80.,80. |
| Citation | 256 Mich. 1,239 N.W. 401 |
| Parties | BLUST v. SISTERS OF MERCY et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from the Department of Labor and Industry.
Proceeding under the Workmen's Compensation Act by Loretta Cecelia Blust, claimant, for injuries, opposed by the Sisters of Mercy, employer, and the Hartford Accident & Indemnity Company, insurance carrier. The Department of Labor and Industry denied compensation, and claimant appeals.
Affirmed.
Argued before the Entire Bench.
Amos F. Paley, of Grand Rapids, for appellees.
Plaintiff presented a claim for compensation against the Sisters of Mercy, Grand Rapids, Mich., and the Hartford Accident & Indemnity Company. From an order denying compensation, she brings certiorari. August 26, 1927, plaintiff made application to become a member of the Sisters of Mercy, of Mt. Mercy College and Academy, at Grand Rapids, Mich. She was tentatively accepted, and began a probationary period, divided into three stages: Postulate stage; novitiate stage; and white sister stage. From August 26, 1927, to April 24, 1928, petitioner was a postulate, and from April 24, 1928, to April 24, 1930, a novitiate. The period which prospective members must spend in the various stages is arbitrary. Applicants are never finally accepted on application. There is a six-month period during which they remain postulate and a two-year period during which they remain novitiate. This is followed by a three-year period between the time they take their first and preliminary vow upon graduating from the novitiate stage until they take their final vows and become sisters in the order. When the applicant is a postulate or a novitiate, she is on probation. During the period when applicant is a novice, she has the privilege of withdrawing from the order, and the order has the privilege of refusing to accept her into membership. November 16, 1929, while plaintiff was a novitiate, she was engaged in domestic work of the Mt. Mercy Academy, and, while cleaning the drum of a mangle in the laundry, she got both hands in the mangle, her arms were pulled in, and she was injured. She was taken to St. Mary's hospital, an institution controlled by the Sisters of Mercy in Grand Rapids, but entirely separate from Mt. Mercy Academy, where she remained until February 14, 1930. Following her discharge from the hospital, she suffered total disability until September 5, 1930. After plaintiff's injury, defendant Sisters of Mercy filed a report of a compensable accident.
Mt. Mercy Academy is a normal training school, approved by the state, complying with the statutes requiring normal training of all teachers who teach in the public or parochial schools of the state. Plaintiff, had a high school education before applying for admission to the order, and, at the time of her injury, was taking the normal training course to fit herself for teaching, expecting to become a teacher, qualified to teach in the Catholic parochial schools of the state.
The necessary clothing and money to defray the expense of reception into the order had been furnished. Plaintiff performed, in the kitchen, laundry, chapel, and halls of the institution, services classified as menial at common law under direction of the Sisters of Mercy, and was supplied by them with the necessities of food, clothing, shelter, and medical attention. At the time of her injury, plaintiff's legal status was not different than that of any one else who is given food, clothing, shelter, and an opportunity to attend school in consideration for services rendered. The defendant Sisters of Mercy is an order of the Roman Catholic Church. They accepted the provisions of the Workmen's Compensation Law, May 2, 1929, and took out a workmen's compensation insurance policy in defendant Hartford Accident & Indemnity Company. The matter came on for hearing before a deputy commissioner at Grand Rapids February 5, 1931, who, after hearing the testimony, entered an award in favor of petitioner, granting her compensation in the sum of $9.10 a week for a period of 41 weeks and 5 days being from November 6, 1929, to September 5, 1930, and also the sum of $1,601.75 for medical, hospital, and nursing expenses incurred within the 90-day period following the accidental injury. The defendant Hartford Accident & Indemnity Company appealed from the award of the deputy commissioner to the Department of Labor and Industry, and, upon final hearing, the award of the deputy commissioner was reversed, and plaintiff denied compensation on the ground the relationship of employer and employee did not exist between defendant Sisters of Mercy and plaintiff.
It is contended by the insurance company the allowance and payment of plaintiff's claim would be sacrilegious. Not having raised this question when the premium money was coming in, it ought not to urge it when the money is going out. There was ample evidence to sustain the award of the deputy commissioner, if plaintiff was an employee.
The sole question involved is whether the plaintiff was an employee, within the meaning of the Compensation Law, of the Sisters of Mercy, November 16, 1929, the date of the accident. If so, she has a right to compensation; if not, she has no right to recover.
Section 7, part 1, of the Compensation Law, section 8413, Comp. Laws 1929, provides: ‘The term ‘employe’ as used in this act shall be construed to mean: * * * Every person in the service of another, under any contract of hire, express or implied.'
Defendant contends that under the Compensation Law an injury to be compensable must arise out of and in the course of an employment; Van Sweden v. Van Sweden, 250 Mich. 238, 230 N. W. 191, which requires the relation of employer and employee, and necessarily involves a contract, and that the only basis of the relation of employer and employee is a contract of hire, express or implied. Ganga v. Ford Motor Co., 250 Mich. 247, 230 N. W. 159.
In Atchison, Topeka & Santa Fé Ry. Co. v. Fronk, 74 Kan. 519, 87 P. 698,11 Ann. Cas. 174, the question arose whether a student brakeman was a railway employee. Applicant, to learn the business of a railroad brakeman, signed an application as follows:
‘Application to Learn Work of Freight Brakeman or Fireman, and Release.
‘Whereas, I, the undersigned, Elmer Tindall, residing at Hoisington, in the state of Kansas, and being 25 years of age, desiring to learn the work necessary to fir myself for the occupation of a brakeman on freight trains, have applied to Atchison, Topeka & Santa Fé Railway Company for an opportunity of learning said work, and to that end have requested the privilege of working on and about the locomotives, trains and cars of said railway company without expectation or promise of receiving wages or any pay whatever for work so done during such time, and without being considered as an employee of said company during said time; and whereas, the railway company is willing to grant me the privilege above applied for on the representation and statement above made, but on account of the dangers to which I may be exposed, also requires that the railway company, its officers and agents, shall be relieved from all liability for damage, injury or death sustained by me while so working, or while riding, walking or standing on or about such locomotives, trains or cars, or while on or about the property or premises of the railway company; now, therefore, in consideration of said company granting me the * * * privileges hereinbefore mentioned, I do hereby agree to and do hereby assume all dangers of such work and risks of injuries which may be sustained by me in or about such work, whether the same may be caused by or arise from the negligence of the railway company or of the officers, agents or servants thereof, or otherwise, or which I may receive from any cause whatsoever during the term of my connection with said company in learning the work aforesaid; and I hereby release and forever discharge said Atchison, Topeka & Santa Fé Company, and the officers and agents thereof, from any and all claims, demands, suits or liabilities of any kind for death or for any injury that I may sustain, whether the same be caused by or arise from the negligence of the said railway company, or of the officers, agents or employees thereof, or otherwise, during the term of my connection with said company in learning the work aforesaid, while upon or about such locomotives, trains or cars, or while walking or standing on or about the same, or while on or about any such property or the premises of said railway company; and I further agree that I will not claim any wages or compensation for any work that I may do during such time, nor claim to be in the employ of said company nor an employee thereof during such time.
‘Witness my hand and seal at Dodge City, State of Kansas, this 4th day of August, 1904.
‘Elmer Tindall [Seal.]
‘Signed in presence of H. C. Duncan, Witness.’
The railroad company defendant upon the ground this contract was valid and binding, and plaintiff was not a railway employee. It is said: ...
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