Hix v. Besser Co.

• Decision Date: 02 October 1969
• Docket Number: Docket No. 6168,No. 1,1
• Citation: 19 Mich.App. 468,172 N.W.2d 821
• Parties: Oleta HIX, Administratrix of the Estate of Raymond L. Parks, Deceased, Plaintiff-Appellee, Aetna Casualty & Surety Company, Intervenor Plaintiff-Appellant, v. BESSER COMPANY, a Michigan corporation, and Huron Engineering Company, aMichigan corporation, jointly and severally, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 821

172 N.W.2d 821

19 Mich.App. 468

Oleta HIX, Administratrix of the Estate of Raymond L. Parks Deceased, Plaintiff-Appellee Aetna Casualty & Surety Company, Intervenor Plaintiff-Appellant, v. BESSER COMPANY, a Michigan corporation, and Huron Engineering Company, aMichigan corporation jointly and severally, Defendants-Appellees.

Docket No. 6168.

Court of Appeals of Michigan, Division No. 1.

Oct. 2, 1969.

Released for Publication Dec. 30, 1969.

John R. Brown, LeVasseur, Werner, Mitseff & Brown, Detroit, for aetna.

Paul A. Rosen, Goodman, Eden, Robb, Millender, Goodman & Bedrosian, Detroit, for Oleta Hix.

John B. Halsey, Cary, BeGole, Martin, Bohall & Joselyn, Detroit, for defendants-appellees.

Before HOLBROOK, P.J., and McGREGOR and BRONSON, JJ.

HOLBROOK, Presiding Judge.

This action was brought under the wrongful death act ¹ to recover for the death of Raymond L. Parks allegedly caused by the negligence of defendants Besser Company, a Michigan corporation, and Huron Engineering Co. ²

Defendants' answers denied the allegations contained in plaintiffs' complaint and further pleaded affirmative defenses.

At the time of the accident plaintiff's decedent was an employee of Cinder Block, Inc. located in Detroit, Michigan.

By the order of the court, Aetna Casualty & Surety Company, the workmen's compensation carrier for Cinder Block, Inc. was permitted to intervene as a party plaintiff. M.C.L.A. § 413.15 (Stat.Ann.1968 Rev. § 17.189).

It appears to this Court that all of the parties to the suit considered liability to be very questionable. On May 11, 1966, plaintiff-administratrix and intervening plaintiff, Aetna Casualty & Surety Company took separate consent judgments for $10,000 and $1,500 respectively and on May 12, 1966, both plaintiffs filed separate satisfaction of judgment. On July 6, 1966, the circuit judge entered an order certifying judgment to the Oakland county probate court in the following language:

'That after listening to all testimony and in view of the separate judgments entered, this Court certifies that the judgment obtained by the representative of the Estate of Raymond Louis Parks was for loss not compensated for in any way under the workmen's compensation act and in fact was for the noneconomic loss to the family of Raymond Louis Parks, including loss of companionship, nurture, affection, and services occasioned by the death of the aforesaid Raymond Louis Parks.'

On May 28, 1968, Aetna Casualty & Surety Company, the intervening plaintiff, made a motion to set aside this order certifying judgment to Oakland county probate court claiming it had no notice of the hearing and no opportunity to be heard before the terms of the order were determined and for the further reason that the order was inappropriate. After a hearing on the motion the trial court made the following order on June 14, 1968:

'It is hereby ordered that the order of this court of July 6, 1966, certifying judgment to the Oakland probate court is reaffirmed and defendant's motion to set aside such order is hereby denied.'

From this order the intervening plaintiff appeals and raises the single question, viz.: Should appellant's motion to set aside the order of the circuit judge directed to the probate court of Oakland county dated July 6, 1966, be granted?

The circuit court's certification in question was required by reason of M.C.L.A. § 600.2922 (Stat.Ann.1969 Cum.Supp. § 27A.2922).

In its brief on appeal intervening plaintiff states:

'At the time of the consent judgments, this appellant settled interests it had in this case at that time. (M.C.L.A. § 413.5 (Stat.Ann.1968 Rev. § 17.189)) Its interest as of the entry of judgment exceeded $11,000.00 It compromised and accepted $1,500.00 for that interest as of May 11, 1966.'

The record discloses the following:

'CROSS EXAMINATION.

'By MR. BROWN (attorney for intervenor plaintiff):

'Q. Mrs. Hix, since the death of your husband, your first husband, in January, 1962 you have been receiving from the Aetna Casualty and Surety Company regular checks amounting to $57.00 per week for and on behalf of the children?

'A. Yes, up until it was reduced.

'MR. BROWN: Your Honor, let it be stated that the total expenditure of the Aetna Casualty and Surety Company to date has been well in excess of $11,000.

'MR. HALSEY (defendant's attorney): It is our understanding you are representing Aetna Casualty, Mr. Brown, and there will be a consent judgment entered on behalf of Aetna Casualty in the sum of $1500.00, is that correct?

'MR. BROWN: Yes.

'THE COURT: Anything further?

'MR. ROSEN (plaintiff's attorney): No, Your Honor.

'THE COURT: The Court will enter a consent judgment in the amount of $10,000, with all interest waived and without taxable attorney fees, on behalf of the Estate of Raymond Louis Parks, and will further enter a judgment in the amount of $1500.00 on behalf of the Intervening Plaintiff, Aetna Casualty and Surety Company.'

Continuing with intervening plaintiff's argument in its brief it is stated:

'But payments to the survivors of the decedent were to continue into the future creating a future interest on the part of the appellate, all in accordance with the workmen's compensation act, M.C.L.A. § 411.1 et seq. (Stat.Ann.1968 Rev. § 17.141 et seq.).'

M.C.L.A. § 413.15 (Stat.Ann.1968 Rev. § 17.189) permits the bringing of this action by plaintiff herein and also for the intervention by Aetna.

It would appear to this Court that under this permissive act the plaintiff herein was permitted to sue for and obtain, if successful, not only damages for the pecuniary loss that would be included within the workmen's compensation payments, but also other pecuniary loss ³ including loss of companionship, as defined in the cases of Wycko v. Gnodtke (1960), 261 Mich. 331, 105 N.W.2d 118; Currie v. Fiting (1965), 375 Mich. 440, 134 N.W.2d 611; Heider v. Michigan Sugar Company (1965), 375 Mich. 490, 134 N.W.2d 637; Reisig v. Klusendorf (1965), 375 Mich. 519, 134 N.W.2d 634. It now appears from the very recent cases of Wheeler (Gamble) v. American Asbestos Products Company (1968), 381 Mich. 105, 159 N.W.2d 839, and Transamerican Freight Lines, Inc. v. Quimby (1968), 381 Mich. 149, 160 N.W.2d 865, that the purpose of the provision of the workmen's compensation act permitting an employee to sue a third party is to enable the employee to obtain recovery beyond the amount which can be recovered under the statute in workmen's compensation benefits. The provision that the recovery shall be used to first 'reimburse the employer or its workmen's compensation insurance carrier' reveals the legislative intent that the object of permitting an action against the third party tort feasor is, first, to bring about such reimbursement, with any excess thereafter to go to the employee....