Herman v. Theis

• Citation: 160 N.W.2d 365,10 Mich.App. 684
• Decision Date: 02 April 1968
• Docket Number: Docket No. 3555,No. 1,1
• Parties: Alan HERMAN, Plaintiff-Appellant, v. Stephen THEIS, d/b/a Steven's Standard Service, and the Standard Oil Company, an Indiana corporation, Defendants-Appellees
• Court: Court of Appeal of Michigan (US)

Page 365

160 N.W.2d 365

10 Mich.App. 684

Alan HERMAN, Plaintiff-Appellant, v. Stephen THEIS, d/b/a Steven's Standard Service, and the

Standard Oil Company, an Indiana corporation,

Defendants-Appellees.

Docket No. 3555.

Court of Appeals of Michigan, Division No. 1.

April 2, 1968.

Released for Publication Aug. 16, 1968.

Leave to Appeal Denied Sept. 3, 1968.

August, Frimet, Goren & Murphy, Detroit, for appellant.

Ward, Plunkett, Cooney, Rutt & Peacock, Detroit, for appellees.

Before LESINSKI, C.J., and FITZGERALD and McGREGOR, JJ.

FITZGERALD, Judge.

Plaintiff was a minor employed by defendants as a service station attendant. On July 29, 1962, he was severely injured in an automobile accident at 8 Mile Road and Woodward when he fell asleep at the wheel. A claim was filed by him with the Workmen's Compensation Department in March, 1964, alleging that the injury occurred while he was an 'on-service employee'. An action was also filed in the Wayne County circuit court in June, 1964, alleging that defendants were negligent, and that an employer-employee relationship existed. Plaintiff withdrew his claim with the Workmen's Compensation Department voluntarily in September, 1965, before any decision was forthcoming, after defendant had answered his application by denying that the injuries arose 'out of and in the course of his employment'. The Wayne County circuit court dismissed plaintiff's claim on the grounds that by filing his claim with the Workmen's Compensation Department, and by the provisions of the Workmen's Compensation Act, his remedies were exclusively with that agency and did not lie in an action at law in court. Plaintiff appealed that determination to this Court.

A unique theory of recovery is advanced by plaintiff on the following condensed facts. Plaintiff worked the following time, totaling 24 hours, in a service station within a 44-hour period:

July 27, 1962 2 p.m. to 12 midnight

July 28, 1962 10 a.m. to 2 p.m.

July 29, 1962 12 midnight to 10 a.m.

The accident occurred after plaintiff left work of 10 a.m. when he had driven 10 miles from the service station.

We are asked first to decide whether the plaintiff's exclusive remedy is under the Workmen's Compensation Act, thus precluding any action based on negligence in the courts. We also consider whether plaintiff is barred from beginning this action at law because his prior claim was first filed with the Workmen's Compensation Department. These questions must be answered in plaintiff's favor for this Court then to determine whether a cause of action exists based on the facts given above.

The Michigan Workmen's Compensation Act expressly provides at C.L. 1948, § 411.4 (Stat.Ann. 1960 Rev. § 17.144):

'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.'

The 'conditions of liability' herein referred to include those compensations for injuries which arise out of and in the course of employment. Husted v. Consumers Power Co. (1965), 376 Mich. 41, 135 N.W.2d 270. The relevant section of the act at C.L.S. 1961, § 412.1 (Stat.Ann. 1960 Rev. § 17.151) provides:

'Sec. 1. An employee, who receives a personal injury arising out of and in the course of his employment by an employer who is at the time of such injury subject to the provisions of this act, shall be paid compensation in the manner and to the extent hereinafter provided. * * *

'Every employee going to or from his work while on the premises where his work is to be performed, and within a reasonable time before and after his working hours, shall be presumed to be in the course of his employment.'

Plaintiff alleges that this section does Not apply to him because he was not on the business or premises of his employer and that he was 20 or 30 minutes away from work on his way home. Application of this statute to this case is also denied by plaintiff because of his fear that the department might well deny him recovery under the provisions of the Workmen's Compensation Act. See Baas v. Society for Christian Instruction (1963), 371 Mich. 622, 124 N.W.2d 744, 126 N.W.2d 721. Acceptance of plaintiff's argument that the Workmen's Compensation Act does not apply because he does not fall under the conditions of recovery with the result that he should be permitted to go to court on a common law negligence theory, is contrary to the intent of the legislature in creating the act, ¹ i.e., that compensation be provided therein to employees for injury arising out of and in the course of employment. See Andrejwski v. Wolverine Coal Co. (1914), 182 Mich. 298, 148 N.W. 684; Johns v. Wisconsin Land & Lumber Co. (1934), 268 Mich. 675, 256 N.W. 592. Issues concerning injuries and whether they grew 'out of and in the course of the employment relationship' are to be exclusively within the purview of the Workmen's Compensation Department, and the merits of such a claim are to be first evaluated by the department. We refer to the statement by the Court in Morris v. Ford Motor Company (1948), 320 Mich. 372, 31 N.W.2d 89, concerning jurisdiction of the commission:

'The employer-employee relationship existed between plaintiff and defendant and both were subject to the Workmen's Compensation Act. Plaintiff's claim for compensation alleged an injury arising out of and in the course of his employment. Under the statutes above noted exclusive jurisdiction over the issue thus presented is conferred upon the compensation commission. ² * * * Whether plaintiff's injury and resultant disability were compensable under the act or not, his claim therefor was within the jurisdiction of the compensation commission.' (citing cases.)

The above quoted portion of the Morris Case does omit the Court's discussion of the election by Morris to proceed first before the department, thus barring him from an action at law, and plaintiff here also takes issue with this finding. However, we are concerned now with determining the jurisdiction of the department.

Plaintiff states in his brief to this Court that the injuries may have arisen 'out of' his employment by defendant, but denies that they were 'in the course of' his employment and reminds us that defendant also denied this in his answer. This Court will not engage in this evaluation of the facts or any of the merits of the claim, as such issues were not decided by a lower court or board, and we find that plaintiff's 'opinion' is mere conjecture, unsupported by any decision which we could re-examine. Jurisdiction for the determination of those issues concerning exclusiveness and conditions of liability initially must lie with the compensation department and plaintiff may not waive such jurisdiction by filing an action at law and merely stating that C.L.S.1961, § 412.1 (Stat.Ann. 1960 Rev. § 17.151) does not apply to his situation. Rather, the Workmen's Compensation Department is the forum which properly considers questions of employment relationship, injury, and compensation (C.L. 1948, § 413.16 (Stat.Ann. 1960 Rev. § 17.190)), and it must determine whether its jurisdiction is proper, based on findings or 'exclusiveness' and 'conditions of liability', the decision concerning the jurisdiction then being appealable...