Denkiw v. Briggs Mfg. Co., 38

• Decision Date: 28 December 1956
• Docket Number: No. 38,38
• Citation: 347 Mich. 492,79 N.W.2d 876
• Parties: Catherine DEMKIW, Plaintiff and Appellee, v. BRIGGS MANUFACTURING COMPANY, a Michigan Corporation, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 876

79 N.W.2d 876

347 Mich. 492

Catherine DEMKIW, Plaintiff and Appellee, v. BRIGGS MANUFACTURING COMPANY, a Michigan Corporation Defendant and Appellant.

No. 38.

Supreme Court of Michigan.

Dec. 28, 1956.

Lacey, Jones & Doelle, Buell Doelle, Detroit, for defendant and appellant.

Rothe, Marston, Mazey, Sachs & O'Connell, Detroit, for plaintiff and appellee.

Before the Entire Bench, except EDWARDS, J.

CARR, Justice.

This is an action for damages based on the claim that defendant was guilty of negligence in failing to perform a duty owing to plaintiff for her safety. It appears from the declaration that on January 30, 1950, and for some time prior thereto, plaintiff was employed by defendant at the latter's so-called Vernor Plant in the City of Detroit, that she entered the premises through the plant gate about 6:30 in the morning, that she proceeded to the building in which she worked, and that while ascending the approach to said building she slipped, fell, and was injured. It was further averred that defendant failed in its duty to keep the stairway 'in safe condition for its employees and particularly this plaintiff', to provide adequate lighting, to keep the steps free from water, ice, and snow, and to provide a suitable handrail for use in ascending the stairway.

It further appears from the declaration that, following the occurrence in which she was injured, defendant made payments to plaintiff under the provisions of the workmen's compensation act, at the rate of $24 per week from February 2, 1950 to September 7, 1950, when such payments wee discontinued. Thereafter plaintiff filed application with the compensation commission for hearing and adjustment of claim. Such hearing was duly held before a deputy commissioner who determined that under the facts disclosed by the proofs plaintiff was not entitled to compensation. On appeal such finding was sustained by the commission. Thereafter application for leave to appeal to this Court was made, and on September 3, 1952, such application was denied.

Following the action above referred to, plaintiff instituted the present suit on the theory that she was entitled to recover damages in an action of trespass on the case based on the alleged tortious conduct of the defendant. Motion to dismiss the declaration was filed by defendant, it being asserted that at the time of the injury to plaintiff she and defendant were subject to the workmen's compensation law of the State, that exclusive jurisdiction with reference to the matters alleged in the declaration was vested in accordance with the provisions of said act, that plaintiff's right had been fully adjudicated, that, having selected her forum, recourse to the courts in the tort action was barred, and that submitting her claim to arbitration constituted a full release of the defendant under the provisions of C.L.1948, § 416.1, Stat.Ann.1950 Rev. § 17.212. Following a hearing the motion was denied, and on have granted defendant has appealed.

In the case of Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N.W. 49, 51, this Court upheld the constitutionality of the workmen's compensation law.* There the plaintiff brought an action in tort to recover damages for personal injuries suffered, as it was alleged, because of defective installation and equipment in the defendant's plant. In bar of such action defendant pleaded the workmen's compensation act, and at the conclusion of the proofs the trial court directed a verdict in its favor. In considerating the various objections urged against the validity of the statute, the Court said:

'It can be assumed without misgiving that there is no vested right in any remedy for a tort yet to happen which the Constitution protects. Except as to vested rights, the legislatuve power exists to change or abolish existing statutory and common-law remedies. Common and statute laws only remain in force until altered or repealed.'

The Court concluded that the objection to the act based on constitutional grounds were not tenable, and that provisions thereof applicable under the facts in the case were valid. The judgment entered on the directed verdict was accordingly affirmed.

The purpose and scope of the workmen's compensation act have been considered by Court in many cases since the decision in the Mackin case. In Twork v. Munising Paper Co., 275 Mich. 174, 266 N.W. 311, 313, the factual situation presented was analogous to that in the case at bar. There the plaintiff brought suit in the circuit court to recover damages resulting from injuries caused by the inhalation of chlorine and other dangerous gases while in the employ of defendant. Prior thereto he had made application for compensation under the provisions of the workmen's compensation act. A hearing was duly had before a deputy commissioner, and an award was denied on the ground that plaintiff had not suffered an accidental injury arising out of and in the course of his employment. No appeal was taken. The proceeding under the compensation act was pleaded by defendant in its answer to the declaraction in the tort case, and said case was dismissed. On appeal to this Court the order was affirmed, the Court declaring that the compensation law 'is a substitute for former rights of action, and any law actions which might remain unaffected by the substitution may effectually be terminated by section 1 part 6 thereof'. The section referred to is above cited as C.L.1948, § 416.1, Stat.Ann.1950 Rev. § 17.212. It reads as follows:

'If the employe, 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.'

It is interesting to note that in the Twork case plaintiff argued that the employer, having denied in the proceeding before the department of labor and industry that an accidental injury and occurred, should be held estopped to claim in the tort action in circuit court that said court was without jurisdiction in the premises. In discussing the argument it was pointed out in the opinion of this Court that plaintiff was not at liberty to follow diverse theories, that the parties having submitted themselves to the provisions of the compensation law were not at liberty to adjudicate differences other than before the department, and that the decision of the deputy commissioner was res adjudicata.

A like situation was involved in Morris v. Ford Motor Company, 320 Mich. 372, 31 N.W.2d 89, 90. There the plaintiff, claiming that he had suffered an injury arising out of and in the course of his employment, sought compensation in accordance with the statute. The commission concluded that he had not sustained a personal injury within the purview of the act and declined to make an award. No review of the order entered was attempted. Thereafter action was started in the circuit court of Wayne County to recover damages on the theory of tort liability. Motion to dismiss was made, defendant asserting that plaintiff's remedy, if any, was under the workmen's compensation act, that he had elected his forum, and that the decision of the compensation commission was res adjudicata. The trial court granted the motion to dismiss and plaintiff appealed, asserting that under the facts the compensation commission was without jurisdiction because the statute was not applicable. In affirming the order of the circuit court it was pointed out in the unanimous opinion of this Court that in the proceeding under the compensation act plaintiff alleged an injury arising out of and in the course of his employment, and that under the statute exclusive jurisdiction over the issue raised was vested in the compensation commission. It was further declared that the filing of the claim constituted 'a release of all claims at law arising from the injury.' The Court further stated that:

'Plaintiff proceeded before the compensation commission on the theory that his injury arose out of and in the course of his employment, but, now, in an action at law, proceeds on the theory that it did not so arise. Having adopted one theory before the compensation commission, he may not thereafter bring other proceedings based upon an inconsistent, opposite theory or claim. Mintz v. Jacob, 163 Mich. 280, 128 N.W. 211; Donovan v. Curts, 245 Mich. 348, 222 N.W. 743; Mertz v. Mertz, 311 Mich. 46, 18 N.W.2d 271.'

In Totten v. Detroit Aluminum & Brass Corporation, 344 Mich. 414, 73 N.W.2d 882, 884, plaintiff brought an action of trespass on the case to recover damages on the ground that defendant, his employer, had breached a duty owing by it to plaintiff because of the status of the latter as an employee. Defendant moved for judgment on the pleadings, which motion was denied by the trial court. On appeal the order was reversed, the Court holding that:

'Our workmen's compensation act taken in its entirety and read in light of the title to the act, as we construe it, bars plaintiff's action. Plaintiff's action is of such a nature as not now cognizable by a Michigan court of common law jurisdiction.' See, also, Dershowitz v. Ford Motor Company, 327 Mich. 386, 41 N.W.2d 900.

The averments of plaintiff's declaration in the case at bar clearly rest on the theory that the duty owing to her by defendant, and which she asserts was breached, arose from the employer-employee relation. Her assertion that defendant 'neglected and refused to keep the stairway in safe condition for its employees and particularly this plaintiff' is significant. In accord therewith is her averment that said stairway was customarily used by the plaintiff and other employees entering the...