Mackin v. Detroit-Timkin Axle Co., No. 268.

CourtSupreme Court of Michigan
Writing for the CourtSTEERE
Citation187 Mich. 8,153 N.W. 49
PartiesMACKIN v. DETROIT-TIMKIN AXLE CO.
Decision Date14 June 1915
Docket NumberNo. 268.

187 Mich. 8
153 N.W. 49

MACKIN
v.
DETROIT-TIMKIN AXLE CO.

No. 268.

Supreme Court of Michigan.

June 14, 1915.


Error to Circuit Court, Wayne County; George S. Hosmer, Judge.

Action by Thomas Mackin against the Detroit-Timkin Axle Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Argued before BROOKE, C. J., and McALVAY, KUHN, MOORE, STONE, OSTRANDER, BIRD, and STEERE, JJ.

[153 N.W. 50]

Dohany & Dohany, of Detroit, for appellant.

Fred L. Vandeveer, of Detroit (W. P. Belden, of Ishpeming, and Hal H. Smith, of Detroit, of counsel), for appellee.


Grant Fellows, Atty. Gen., and L. W. Carr, Asst. Atty. Gen., amici curiae.

STEERE, J.

This case involves the constitutionality of Act No. 10, Pub. Acts 1912, Extra Session, known as the Workmen's Compensation Law, entitled:

[153 N.W. 51]

‘An act to promote the welfare of the people of this state, relating to the liability of employers for injuries or death sustained by their employés, providing compensation for the accidental injury to or death of employés and methods for the payment of the same, establishing an industrial accident board, defining its powers, providing for a review of its awards, making an appropriation to carry out the provisions of this act, and restricting the right to compensation or damages in such cases to such as are provided by this act.’

Plaintiff brought an action ex delicto to recover damages from defendant under the common law for personal injuries sustained while in its employ, filing his declaration in a plea of trespass on the case properly stating a cause of action, to which defendant pleaded the general issue and gave notice, as a special defense, that it would rely upon said Act No. 10, and offer proof to show that it had elected in due form and prescribed manner to come under the provisions of said act, and in every way met its requirements, but that plaintiff had refused to accept the benefits and the indemnity provided for and offered to him under said act.

Upon the trial it was shown without dispute, and stipulated, that plaintiff was in defendant's employ continuously for over two months prior to the 8th of October, 1912, upon which day he was injured by an electric shock received while oiling some shafting, and thrown from the step ladder upon which he was standing, falling on a grinding machine, receiving severe bruises and injuries, as a result of which he was confined to his bed and home for several weeks, where he was attended and treated by a physician employed by defendant; that, owing to defective insulation and equipment in defendant's plant, the countershaft which plaintiff was oiling had become heavily charged with electricity, and had been in that condition for 8 days and upwards prior to the time of his injury, of which condition he had no previous notice or knowledge.

Over 30 days before said accident defendant had filed a written statement with the Industrial Accident Board electing to be subject to and accepting the provisions of the Workmen's Compensation Law, adopting one of the provided methods specified in said act for payment of compensation to its employés, which election and adoption of method for payment of compensation were approved by the Industrial Accident Board September 26, 1912. Plaintiff gave no notice to defendant in writing that he elected not to become subject to the Workmen's Compensation Law, as provided in paragraph 2, § 8, of part 1 of said act, and remained continuously in the employ of the defendant for more than 30 days after it had filed its election to come under the provisions of the act.

Defendant tendered plaintiff in proper time and manner the full amount due him for his injuries under the Workmen's Compensation Law, which he declined to accept, not because it was insufficient according to the provisions of the act, but on the ground said act was unconstitutional, and he claimed the right to an action for personal injuries and trial by jury under the common law.

It was also stipulated between the parties at the trial that, if said Act No. 10 was found unconstitutional in the particulars claimed by plaintiff's counsel, he was entitled to have a verdict directed in his favor for an agreed amount, but, if said act was found constitutional, plaintiff could not recover, and defendant was entitled to a verdict in its favor. After argument, on motion of counsel for defendant the trial court sustained the constitutionality of the act as to the question raised, and entered judgment on a directed verdict for defendant.

Though more fully elaborated and subdivided, the propositions urged by plaintiff's counsel against the constitutionality of the act under consideration may be summarized and stated as follows: It conclusively imputes to the employé knowledge of the employer's election to come under the law; it confers upon the Industrial Accident Board judicial powers; it includes provisions not covered by the title, and the title embraces more than one subject; it discriminates against domestic, farm, and casual employés, and is class legislation; it deprives a parent of right of action for injury to his child; and it deprives an injured employé of the right to be represented by an attorney or agent of his choice, in making all attorney fees subject to regulation by the Industrial Accident Board.

It is to be recognized at the outset that workmen's compensation legislation of this class, based on the economic principle of trade risk in that personal injury losses incident to industrial pursuits are like wages, and breakage of machinery a part of the cost of production, works fundamental changes in the familiar principles underlying and governing the doctrine of liability for negligence as heretofore applied to the relation of master and servant. But it by no means follows that this comparatively recent and radical legislation upon the subject, enacted to meet changed industrial conditions, and afford relief from evils and defects which had developed under the old rules of law in negligence cases for personal injuries of employés, violates the spirit or letter of our Constitution. 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 legislative power exists to change or abolish existing statutory and common-law remedies. Common and statute laws only remain in force until altered or repealed. Const. Schedule, § 1. In Second Employers' Liability Cases, 223 U. S. 50, 32 Sup. Ct. 175,56 L. Ed. 327, 38 L. R. A. (N. S.) 44, sustaining the constitutionality of the federal Employers' Liability Act, which abolished the defenses of contributory negligence, assumption

[153 N.W. 52]

of risk where injury was due to violation of a safety statute, and the fellow servant doctrine, the Supreme Court of the United States quoted with approval the rule gleaned by Bradbury from its former decisions, as follows:

‘A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will * * * of the Legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.’

While legislation providing for compensation of workmen for industrial injuries upon the basis of trade risks relating to the industry, to be charged against it as part of the cost, is of comparatively modern origin in countries where the common law of England has been the foundation of prevailing systems of law, in recent years statutes of that import, similar in purpose, and often with many provisions nearly identical, have been enacted in England, Ireland, Scotland, Australia, New Zealand, the British provinces of North America, and about one-half of the United States. These when brought before the courts of their respective jurisdictions have, as a rule, been sustained in their essential features. Comparison indicates that those who prepared the Michigan act made a thorough study of then existing laws and decisions upon the subject, and, conservatively adhering to tested precedent when available, painstakingly developed a comparatively mild and well-balanced law, avoiding uncertainties and extremes which some of the more radical acts enacted elsewhere disclose. As a result the questions raised here are not altogether novel, for we find similar provisions in the workmen's compensation laws of other states have been passed upon in their courts of last resort, in carefully considered and well-reasoned opinions.

In some states the law is made compulsory upon both parties or upon one with choice to the other, giving rise to questions which need not be considered here, since the law in this state, as applied to this case, becomes operative upon neither employer nor employé who does not expressly or impliedly consent; but, if the employer so elects, and the employé does not give written notice to the contrary he is conclusively presumed to have consented, and comes under the act. Plaintiff contends the act is unconstitutional in that particular, contravening both the federal and state Constitutions, because it deprives an injured employé of his right to resort to the courts for redress and have trial by jury without knowledge, consent, or waiver on his part, and there can be no waiver of constitutional rights without knowledge of the facts upon which it is based. The act, so far as material to that question, provides (part 1, § 8):

‘Any employé as defined in subdivision 2 of the preceding section shall be deemed to have accepted and shall be subject to the provisions of this act and of any act amendatory thereof if,...

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95 practice notes
  • Demay v. Liberty Foundry Co., No. 30153.
    • United States
    • United States State Supreme Court of Missouri
    • March 31, 1931
    ...175 Iowa, 245, 154 N.W. 1037, 1060, 1061; Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556, 561; Mackin v. Axle Co., 187 Mich. 8, 18, 153 N.W. 49; State ex rel. v. District Court, 128 Minn. 221, 224, 150 N.W. 623; State v. Timber Co., 75 Wash. 581, 589, 135 Pac. 646; Borg......
  • Benson v. North Dakota Workmen's Compensation Bureau, No. 9238-A
    • United States
    • United States State Supreme Court of North Dakota
    • July 16, 1979
    ...N.W.2d 52 (1971). The Michigan Supreme Court made no comments upon its previous, contrary holding in Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N.W. 49 (1915), which, in upholding the exclusions from workmen's compensation coverage, "The law is unquestionable that it is within......
  • Rafaeli, LLC v. Oakland Cnty., Docket No. 156849
    • United States
    • Supreme Court of Michigan
    • July 17, 2020
    ...of the legislature, unless prevented by constitutional limitations. ") (emphasis added); see also Mackin v. Detroit-Timkin Axle Co. , 187 Mich. 8, 13, 153 N.W. 49 (1915) ("Except as to vested rights , the legislative power exists to change or abolish existing statutory and common-......
  • Beauchamp v. Dow Chemical Co., Docket No. 75578
    • United States
    • Supreme Court of Michigan
    • December 23, 1986
    ...current exceptions see M.C.L. Sec. 418.115; M.S.A. Sec. 17.237(115). 18 Siegel, n. 11 supra at VI-A-10; Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 14, 153 N.W. 49 19 Id. 20 Sheppard v. Michigan National Bank, 348 Mich. 577, 578-79, 83 N.W.2d 614 (1957). 21 See Hagopian v. Highland Park......
  • Request a trial to view additional results
95 cases
  • Demay v. Liberty Foundry Co., No. 30153.
    • United States
    • United States State Supreme Court of Missouri
    • March 31, 1931
    ...Co., 175 Iowa, 245, 154 N.W. 1037, 1060, 1061; Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556, 561; Mackin v. Axle Co., 187 Mich. 8, 18, 153 N.W. 49; State ex rel. v. District Court, 128 Minn. 221, 224, 150 N.W. 623; State v. Timber Co., 75 Wash. 581, 589, 135 Pac. 646; Bor......
  • Benson v. North Dakota Workmen's Compensation Bureau, No. 9238-A
    • United States
    • United States State Supreme Court of North Dakota
    • July 16, 1979
    ...N.W.2d 52 (1971). The Michigan Supreme Court made no comments upon its previous, contrary holding in Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N.W. 49 (1915), which, in upholding the exclusions from workmen's compensation coverage, "The law is unquestionable that it is within the ......
  • Rafaeli, LLC v. Oakland Cnty., Docket No. 156849
    • United States
    • Supreme Court of Michigan
    • July 17, 2020
    ...of the legislature, unless prevented by constitutional limitations. ") (emphasis added); see also Mackin v. Detroit-Timkin Axle Co. , 187 Mich. 8, 13, 153 N.W. 49 (1915) ("Except as to vested rights , the legislative power exists to change or abolish existing statutory and common-law remedi......
  • Beauchamp v. Dow Chemical Co., Docket No. 75578
    • United States
    • Supreme Court of Michigan
    • December 23, 1986
    ...current exceptions see M.C.L. Sec. 418.115; M.S.A. Sec. 17.237(115). 18 Siegel, n. 11 supra at VI-A-10; Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 14, 153 N.W. 49 19 Id. 20 Sheppard v. Michigan National Bank, 348 Mich. 577, 578-79, 83 N.W.2d 614 (1957). 21 See Hagopian v. Highland Park......
  • Request a trial to view additional results

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