Maiuri v. Sinacola Const. Co.

• Decision Date: 25 June 1968
• Docket Number: Docket No. 2886,No. 1,1
• Citation: 162 N.W.2d 344,12 Mich.App. 22
• Parties: Pasquale MAIURI and Amelia Maiuri, Plaintiffs-Appellants, v. SINACOLA CONSTRUCTION COMPANY, a Michigan corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 344

162 N.W.2d 344

12 Mich.App. 22

Pasquale MAIURI and Amelia Maiuri, Plaintiffs-Appellants, v. SINACOLA CONSTRUCTION COMPANY, a Michigan corporation,

Defendant-Appellee.

Docket No. 2886.

Court of Appeals of Michigan, Division No. 1.

June 25, 1968.

Released for Publication Nov. 22, 1968.

Frederick E. Metry, Metry, Metry, Sanom, Ashare & Goldman, Detroit, for plaintiffs-appellants.

Robert E. Fox, Detroit, for defendant-appellee.

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

LESINSKI, Chief Judge.

The plaintiffs, Pasquale Maiuri and Amelia Maiuri, seek damages from the defendant Sinacola Construction Company, for the loss of companionship of their son, Albert Dominic Maiuri, who died from injuries sustained when a chunk of earth fell and crushed his skull. The accident happened on July 30, 1964, while the deceased, in the defendant's employ, was connecting pipe in a 27 deep trench. At the time of his death, Albert Maiuri was 24 years old, unmarried, and was living at home with his parents. The defendant company was subject to the provisions of the Michigan workmen's compensation act, C.L.1948, § 411.1 et seq., as amended (Stat.Ann.1960 Rev. and Stat.Ann.1968 Cum.Supp. § 17.141 et seq.).

The plaintiffs charge the defendant with negligence, alleging it failed to comply with the safety requirements laid down by the highway department for the shoring up of construction trenches.

The plaintiffs assert a cause of action founded on the decision of the Supreme Court in Currie v. Fiting (1965), 375 Mich. 440, 134 N.W.2d 611, in which the Court decided it would recognize a cause of action brought under the wrongful death act, C.L.S.1961, § 600.2922, as last amended by P.A.1965, No. 146 (Stat.Ann.1965 Cum.Supp. § 27A.2922, for the loss of companionship of a child.

The defendant contends that the workmen's compensation act provided the exclusive remedy and that therefore it cannot be liable in an action at law.

The $500 statutory burial allowance* was paid to the plaintiffs by the defendant employer's insurer on November 6, 1964, and on November 7, 1964, Pasquale Maiuri signed a receipt acknowledging the payment. January 7, 1965, the plaintiffs filed an application for hearing and adjustment of claim with the workmen's compensation department. The employer defended on the ground of no dependency. On August 2, 1965, the claim was dismissed by the department on plaintiffs' request.

On this appeal from the accelerated judgment in favor of defendant, plaintiffs admit that they were in no way financially dependent on their son, and they contend that, therefore, the scope of the workmen's compensation act does not bar them from the $200,000 damages they claim they are entitled to for the loss of the companionship of their son.

The disposition of this contention is controlled by the analogy that Moran v. Nafi Corporation (1963), 370 Mich. 536, 122 N.W.2d 800, bears to this case. In Moran the plaintiff wife alleged a cause of action for loss of consortium against her husband's employer, and she founded her claim on the Supreme Court's decision in Montgomery v. Stephan (1960), 359 Mich. 33, 101 N.W.2d 227, in which Michigan for the first time recognized a cause of action in the wife for loss of consortium.

The Supreme Court held in Moran that the exclusivity of the remedies provided by the workmen's compensation act barred the action asserted. The interpretation was bedded in part 1, § 4 of the act:

'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.' C.L.1948, § 411.4 (Stat.Ann.1960 Rev. § 17.144).

The plaintiffs' argument that their action is saved from the sweep of this provision is concluded against them by the receipt they acknowledged of the payment of the statutory burial allowance. Without question, the circumstances of the tragic death of Albert Maiuri did constitute the conditions of liability of his employer under the act: death came from injuries sustained during the course of the decedent's employment. The workmen's compensation act was applicable, and its remedies are exclusive. See Herman v. Theis (1968), 10 Mich.App. 684, 160 N.W.2d 365.

Moran v. Nafi, supra, was preceded by a series of decisions that clarify the issue before us by their interpretation of the provisions of the workmen's compensation act making the remedies under the act exclusive.

In Wall v. Studebaker Corporation (1922), 219 Mich. 434, 189 N.W. 58, a father brought an action against the employer of his minor son alleging a separate right of action based on the loss of the services of his son. The son had made an arrangement with the defendant employer for compensation of his injury. The Supreme Court sustained a directed verdict for the defendant, concluding that the exclusivity provision of the workmen's compensation statute barred the father's action at law.

In Thomas v. Parker Rust Proof Co. (1938), 284 Mich. 260, 279 N.W. 504, the Supreme Court held that a wife's action at law against her deceased husband's employer was barred by the workmen's compensation act even though the act provided no compensation to the wife since the occupational disease...