Graham v. Mich. Motor Freight Lines, Inc.

• Decision Date: 04 January 1943
• Docket Number: No. 53.,53.
• Citation: Graham v. Mich. Motor Freight Lines, Inc., 304 Mich. 136, 7 N.W.2d 246 (Mich. 1943)
• Parties: GRAHAM et al. v. MICHIGAN MOTOR FREIGHT LINES, Inc., et al.
• Court: Michigan Supreme Court

304 Mich. 136

7 N.W.2d 246

GRAHAM et al.

v.MICHIGAN MOTOR FREIGHT LINES, Inc., et al.

No. 53.

Supreme Court of Michigan.

Jan. 4, 1943.

Appeal in the Nature of Certiorari from Department of Labor and Industry.

Proceedings under the Workmen's Compensation Law by Mrs. Mildred Graham, widow, and Gerald Graham, dependent, of Orville Graham, deceased employee, opposed by Michigan Motor Freight Lines, Inc., employer, and the General Accident Assurance Corporation, Limited, insurance carrier.From an award of compensation, the defendants appeal in the nature of certiorari.

Award vacated.

Before the Entire Bench.

Kerr, Lacey & Scroggie, or Detroit, for defendants and appellants.

Floyd T. Schermerhorn, of Detroit, for plaintiffs and appellees.

BUTZEL, Justice.

Plaintiffs are respectively the widow and minor son of Orville Graham, who met death on March 10, 1937, while driving a truck owned by the Michigan Motor Freight Lines, Inc., from Detroit to Cleveland, when the truck collided with one owned by the Hess Cartage Company on US-25 near the city limits of Detroit, Michigan.

Defendant motor freight lines is engaged in a general trucking business in Michigan Ohio, and elsewhere, and delivers shipments originating in Michigan to local points in this State as well as to points outside of the State.It does a large intrastate, as well as interstate, business.Some of the trucks make runs to points in Michigan, some to points outside of the State, and the first driver available is given a truck ready to be run, irrespective of its destination.Defendant assurance company insured defendant.

Decedent was employed by defendant truck company on the afternoon of March 9, 1937, and later in the day was given an unloaded truck to drive to Cleveland.He met his death but a few hours later.Within a week following the accident, Mildred Graham, widow, made application for compensation at the Detroit office of the Motor Freight Lines, Inc.A week later, she started proceedings for compensation before the Industrial Commission of Ohio.It held that it had no jurisdiction because defendant employer's place of business was in Michigan, and the contract of hire was entered into in the State of Michigan.Mrs. Graham appealed to the court of common pleas in the county of Guyahoga, in the State of Ohio, which held that the workmen's compensation law in Ohio was not applicable and the court had no jurisdiction.An appeal to the circuit court of appeals for the eighth judicial district of the State of Ohio subsequently was dismissed.On April 28, 1937, less than two months after the accident, Mrs. Graham, as administratrix of the estate of decedent, started a common law action for $50,000 against Hess Cartage Company, a copartnership, and the individual partners, in the court of common pleas for the county of Cuyahoga, State of Ohio.Although the case has been diligently prosecuted, the calendar entries covering six and one-half pages, it has not yet been tried.

On September 13, 1937, Mrs. Graham filed a notice to employer of claim for injury with the Michigan department of labor and industry, and on April 16, 1941, on behalf of herself and her minor child, she filed notice and application for adjustment of claim for compensation benefits under the workmen's compensation act.A deputy commissioner, after a hearing on August 21, 1941, and on defendant's motion, dismissed plaintiff's application on the ground that decedent was engaged in interstate commerce at the time of the accident, and further, that ‘the plaintiff made an election to collect from the third party.’Plaintiff appealed to the commission and was awarded compensation at $18 per week for 300 weeks for total dependency for herself and minor child, share and share alike, from March 10, 1937, until further order of the commission.She was also awarded funeral expenses of $200.Defendants appeal from this award.

At the outset plaintiffs and appellees concede that the privity of interest between herself as administratrix and herself personallyand her dependent child is such that the acts of the administratrix are binding upon the widow and her child.SeeCavosie v. Sinclair Refining Co., 292 Mich. 468, 290 N.W. 871.We therefore pass the question without further discussion.

Appellants make the following claims: (1) That decedent was at the time of his death engaged in interstate commerce and consequently the department of labor and industry had no jurisdiction to make any award; (2) that the institution and prosecution of the common law suit against a third party by the widow in the court of common pleas of Cuyahoga County, Ohio, constituted an election of remedies under 2 Comp.Laws 1929, § 8454(Stat.Ann. § 17.189), and that it precludes recovery of compensation by the plaintiffs.

Section 8411,2 Comp.Laws 1929(Stat.Ann. § 17.145), defines ‘employers' as those who have any persons in service under any contract of hire, and who have elected to come under the act.Section 8413,2 Comp.Laws 1929(Stat.Ann. § 17.147), includes under the term ‘employe’ every person in the service of another under any contract for hire expressed or implied, etc.There is a limitation as to the general coverage of the act in the provisions of section 8481,2 Comp.Laws 1929(Stat.Ann. § 17.215), which provides as follows: ‘The provisions of this act shall apply to employers and workmen engaged in intrastate commerce, and also to those engaged in interstate or foreign commerce, for whom a rule of liability or method of compensation has been or may be established by the congress of the United States, only to the extent that their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign commerce, except that any such employer and any of his workmen working only in this state, may, subject to the approval of the industrial accident board, and so far as not forbidden by any act of congress, voluntarily accept and become bound by the provisions of this act in like manner and with the same force and effect in all respects as is hereinbefore provided for other employers and their workmen: Provided, That any employer so engaged in interstate or foreign commerce may elect to become subject to, or withdraw from, the provisions of this act as to any distinct department or departments of its intrastate business, and not to be subject thereto as to any other distinct department or departments of its intrastate business, any other provision or provisions of this act to the contrary notwithstanding.Any such election shall be made, or may be withdrawn in whole or in part, at the time or times, and in the manner, provided in section six (6) of part one (1) of this act for electing to become subject to the provisions hereof, and for withdrawing such election.’In the instant case, it is not claimed that there has been any rule of liability established by the congress of the United States in regard to compensation or indemnity so as to give indemnity or protection to plaintiffs.Appellants claim that the interstate trucking engaged in by decedent at the time of his death was clearly separable or distinct from intrastate commerce; that decedent was engaged in interstate commerce at the time of the accident, although at the time of his employment the question of inter- or intra-state commerce apparently was not discussed.Appellants claim that unless decedent was actually engaged in intrastate commerce, his dependents are precluded from recovering compensation.We believe that the sections quoted extend into those fields of employment not covered by the Federal law.Decisions of other jurisdictions uphold this view.

In Matter of Jensen v. Southern Pacific Co., 215 N.Y. 514, 109 N.E. 600, 601, L.R.A.1916A, 403, Ann.Cas.1916B, 276, the court, interpreting a statute materially identical with ours, said:

‘The statute does not purport directly to regulate or impose a burden upon commerce, but merely undertakes to regulate the relations between employers and employes in this state.Such regulation may, and no doubt does, indirectly affect commerce, but to the extent that it may affect interstate or foreign commerce, it is plainly within the jurisdiction of the state, until Congress by entering the field excludes state action.* * *

‘Literally construed, section 114 makes the statute apply only to intrastate work, either done by itself or in connection with, but clearly separable and distinguishable from, interstate or foreign commerce.But, though the section is awkwardly phrased, it is manifest that a broader application was intended, else the clause ‘for whom a rule of liability or method of compensation has been or may be established by the Congress of the United States' is meaningless.The Legislature evidently intended to regulate, as far as it had the power, all employments within the state of the kinds enumerated.The earlier sections are in terms of general application, and section 114, which is headed ‘Interstate Commerce,’ is one of limitation, not of definition.Its obvious purpose was to guard against a construction violative of the Constitution of the United States, and so it provided that the act should apply to interstate or foreign commerce, ‘for whom a rule of liability or method of compensation has been or may be established by the Congress of the United...