Moran v. Nafi Corp.

• Decision Date: 17 July 1963
• Docket Number: J,No. 47,47
• Citation: 122 N.W.2d 800,370 Mich. 536
• Parties: Lena C. MORAN, Plaintiff and Appellee, v. NAFI CORPORATION, a Michigan Corporation, Defendant and Appellant. an. Term.
• Court: Michigan Supreme Court

Page 800

122 N.W.2d 800

370 Mich. 536

Lena C. MORAN, Plaintiff and Appellee, v. NAFI CORPORATION, a Michigan Corporation, Defendant and Appellant.

No. 47, Jan. Term.

Supreme Court of Michigan.

July 17, 1963.

Vandeveer, Haggerty, Doelle, Garzia, Tonkin & Kerr, Detroit, for defendant-appellant; Stanley E. Beattie, Thomas C. Mayer, Detroit, of counsel.

L. Edwin Wenger, Detroit, for plaintiff-appellee.

Before the Entire Bench.

O'HARA, Justice.

On February 25, 1960, this Court in a 4 to 3 decision with one Justice not participating changed the law of our State in order to permit a wife to bring a separate action for loss of consortium. Montgomery v. Stephan, 359 Mich. 33, 101 N.W.2d 227. Whatever our view now as to the correctness of the judicial pronouncement in Montgomery relating to the existence of the cause of action, it stands, at least for the present, as to the circuit bench of our State, the controlling law, and loss of consortium is actionable if properly asserted.

On April 21, 1961, plaintiff wife, in the instant case, filed her declaration and asserted her cause of action arising from, or at least permitted under, that decision.

However, important differences exist between this case and Montgomery. In Montgomery, plaintiff-wife sued a tortfeasor otherwise unrelated to her injured husband. Here plaintiff wife seeks damages for loss and invasion of consortium from her husband's employer against whom an award had been entered by the workmen's compensation commission for the husband, which award carried an additional $3 weekly benefit by reason of her dependency.

We do not regard the additional $3 benefit as controlling. If plaintiff has an action in her own right maintainable against her husband's employer, despite his receipt of compensation benefits, three additional dollars a week to him as a dependency increment will not defeat it. The right of action we deal with here is hers and hers alone. The question is neither what he receives, nor for what he receives it. The real question is whether the Michigan workmen's compensation act is declarative only of the rights of the injured workman, or whether it was legislatively intended to limit the liability of the employer to the schedule of payments therein contained, and to bar action by any other person against him as the result of an injury to the employee, where the employee's right to compensation is determinable under the act.

Defendant's motion to dismiss does not in this case raise the question of the sufficiency of the declaration in stating a cause of action for loss of consortium as that term is defined in Montgomery. For that reason we do not pass upon that issue here and leave it for decision in a case wherein it may be presented.

In this case, first, we must inquire whether any Michigan decision is squarely in point and controlling of the issue. Cases decided before February 25, 1960 cannot decide the question for the rather obvious reason that we deal with a right which was not recognized in this State prior to that date, and no case between the issuance date of Montgomery and the present has been cited, nor has our research revealed one which controls. We deal then with a case of first impression.

Since no Michigan case is controlling, our next step is to examine those cases in our jurisdiction which are applicable by analogy--those cases which deal with rights asserted by others than the injured employee for damages in a separate action, yet growing out of the accidental injury to the employee. Again, none of the cases cited is precisely in point, and as before noted, for the reason that we deal with a previously unrecognized right. We have studied carefully the cases in this category cited and urged by appellant as indicative of legislative intent. They involve, it is true, separate (so-called) rights or causes of action. Yet in each Michigan case cited the cause of action is intertwined with the underlying concept of support and a loss thereof. As noted by our distinguished Chief Justice in his concurring opinion, the case of Wall v. Studebaker Corp., 219 Mich. 434, 189 N.W. 58, is reflective of our settled view on the exclusivity-of-remedy question.

No analogous Michigan cases controlling, we turn to the federal cases cited and those of sister States. Fernandez v. Flint Board of Education, 6 Cir., 283 F.2d 906, is subject to the same infirmity as some Michigan cases. In that case, the personal representative of the deceased sought to recover pecuniary damages already specifically included statutorily in the death benefit under our compensation act and thus clearly constituted double recovery.

Other Federal cases, however, notably Hitaffer v. Argonne Co., Inc., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, decided May 29, 1950, certiorari denied 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624, October 16, 1950 and Smither and Co., Inc. v. Coles, 100 U.S.App.D.C. 68, 242 F.2d 220, decided February 21, 1957, certiorari denied 354 U.S. 914, 77 S.Ct. 1299, 1 L.Ed.2d 1129, June 10, 1957, deal squarely with the problem before us.

Were Hitaffer still the law, appellee here could take comfort therefrom. Decided by 3 of the 9 Judges of the United States Court of Appeals, District of Columbia Circuit, Hitaffer construed language of the Longshoremen's Compensation Act (33 U.S.C.A § 905), the same being considerably more restrictive than comparable provisions of our own act:

'The liability of an employer * * * shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death.' (Emphasis supplied.)

Yet Hitaffer permitted the wife to recover for loss of consortium against the employer.

But Hitaffer was short-lived. A brief 7 years later the question was again before the same court. See Smither and Co. v. Coles, supra. This time the full 9-judge panel sat, en banc. The complexion of the Court had changed somewhat. Judge Clark, who wrote Hitaffer was deceased. Judges Miller and Fahy who had concurred, were still members. In a 6-3 decision Hitaffer was specifically overruled. Judge Miller changed his opinion; Judge Fahy, Chief Judge Edgerton and Judge Bazelon joining, held for the rule announced in Hitaffer. Thus the latter case is no longer law and under the more exclusive Longshoremen's Act, the right of a wife to recover from husband's employer is not now recognized. ¹

Be it carefully noted that Smither does not pretend to challenge the right of a wife to damages for loss of consortium as a general or basic concept. Rather it challenges the assertability of that right against the employer where the Federal act above mentioned obtained. The language of the Longshoremen's Act, supra, fairly read, is much more exclusionary than ours, for Congress thereunder clearly and unequivocally excluded actions by the wife or anyone else against the employer where the injury to the employee was covered by the act.

Next, we must consider the assertion that if the husband's cause of action for loss of consortium is barred by our workmen's compensation act, so likewise is the wife's. We do not consider this postulate tenable. This assertion is based on the principle that where the party receiving the injury may not recover in tort, the one receiving an incidental or consequential injury may not recover. That rule is concerned with 'derivative' injury in the sense that the derivee's action is barred because the principal's action is barred in tort for reasons of the insufficiency of the elements of the main tort action, not, as here, because the tort action was replaced by a recovery of scheduled payments for injury without proof of fault. We never reach the question of the maintainability of the principal's tort action in this case because he can't assert it. The infirmity is not in the elements of his cause of action, but because another recovery legislatively has been substituted for it. The asserted analogy does not apply, and we disturb no settled law in the field of consequential recovery so to hold.

Appellee contends that in the examination of the holdings from other jurisdictions, the classifications set out in Larson's Workmen's Compensation Law is at once accurate and helpful. We agree. These categories are first the 'Massachusetts' type--the broadest where only the employee coming within the act waives his common law rights against the employer. (Mass.Gen.L. Ch. 152.) The narrowest and most exclusionary is the 'New York' group (as is also the Longshoremen's Act we have heretofore mentioned). This group, in explicit terms and name excludes personal representatives, wives, husbands, dependents, and everyone else. We believe Michigan rightly is included in a third grouping--the 'California' type which makes the remedy under the workmen's compensation act 'exclusive' but without particular enumeration of those who may not maintain actions.

Nowhere in the cases cited to us nor in our research disclosed, do we find precedent for the assertability of the cause of action for loss of consortium against the husband's workmen's compensation covered employer under an act comparable to ours.

We are persuaded that in determining the question here presented, the general observation of the late, great liberal, Justice Brandeis in Bradford Electric Light Co. v. Clapper, 286 U.S. 145, 159, 52 S.Ct. 571, 576, 76 L.Ed. 1026, is helpful.

Though in Bradford the distinguished jurist was really discussing the question of whether the action there involved was properly brought in Vermont or New Hampshire, he capsulized the socio-legal philosophy that underlay the enactment of workmen's compensation laws generally, in the following incisive language:

'For the purpose of that Act [the Vermont Workmen's Compensation Act], as of...