Nichols v. Ford Motor Co.

• Decision Date: 07 September 1943
• Docket Number: No. 78.,78.
• Citation: 306 Mich. 268,10 N.W.2d 852
• Parties: NICHOLS v. FORD MOTOR CO.
• Court: Michigan Supreme Court

306 Mich. 268

10 N.W.2d 852

NICHOLS

v.FORD MOTOR CO.

No. 78.

Supreme Court of Michigan.

Sept. 7, 1943.

Proceeding under the Workmen's Compensation Act by James Nichols, claimant, opposed by Ford Motor Company, employer. From an order of the Department of Labor and Industry granting an award to claimant, the employer appeals on leave granted.

Award set aside and case remanded for entry of an order denying compensation.Appeal from Department of Labor and Industry.

Before the Entire Bench.

Doelle, Starkey & Jones, of Detroit, for defendant and appellant.

I. W. Ruskin, of Detroit, for plaintiff and appellee.

BOYLES, Chief Justice.

The question here for decision is whether an employee can be entitled to an award of compensation against his employer, under the Workmen's Compensation Act, after having sued a fellow employee (third party) for damages occasioned by the injury for which compensation is sought. In chronological order, the circumstances under which this question arises are as follows:

On December 9, 1940, the plaintiff was injured during an altercation with one John Leonard, a follow employee, while working for the defendant, Ford Motor Company. Plaintiff asked his employer for compensation for the injury, the company denied liability, and on January 25, 1941, plaintiff started suit for damages against the fellow employee, Leonard, in the common pleas court of Detroit. This suit was tried before a jury, resulting in a verdict of no cause for action. Motion for new trial was granted, and while the suit was thus pending plaintiff filed an application with the department of labor and industry for an award of compensation against the defendant company on account of the alleged accident and injury. Liability was denied by defendant, on the ground, among others, that the claim was barred by 2 Comp.Laws 1929, § 8454 (Stat.Ann. § 17.189), plaintiff having already proceeded by suit against the third party. In the suit in common pleas court, a new trial was had on May 8, 1941, and a jury again returned a verdict of no cause for action. On May 19th, plaintiff's application for award of compensation by the department of labor and industry came on for hearing, plaintiff moved to withdraw this application, and the motion was granted by the deputy who was conducting the hearing. On June 11th, the defendant company filed with the department a petition for a determination that the plaintiff, in bringing the suit against this fellow employee in common pleas court, had made an election to proceed at law for damages and therefore the claim before the department was barred under 2 Comp.Laws 1929, § 8454 (Stat.Ann. § 17.189). Plaintiff and the defendant company then proceeded to a hearing on the matter before a deputy commissioner, ignoring the apparent fact that the application had been withdrawn and treating the application as still pending. The deputy denied compensation on the ground that plaintiff by bringing suit against the third party had made an election and therefore was barred by the statute above referred to. Review was had before the commission and considerable testimony was received from both parties by order of the department, going into the facts of the accident and the amount of an award. On December 30, 1942, the commission reversed the deputy's denial of an award and granted compensation. The defendant, on leave granted, appeals.

Section 8454, 2 Comp.Laws 1929 (Stat.Ann. § 17.189), provides as follows: ‘Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the employe may at his option proceed either at law against that person to recover damages, or against the employer for compensation under this act, but not against both, and if compensation be paid under this act the employer may enforce for his benefit or for that of the insurance company carrying such risk, or the commissioner of insurance, as the case may be, the liability of such other person.'

The theory on which the award was granted,...