Schlickenmayer v. City of Highland Park

• Decision Date: 27 February 1931
• Docket Number: No. 13.,13.
• Citation: 235 N.W. 156,253 Mich. 265
• Parties: SCHLICKENMAYER v. CITY OF HIGHLAND PARK.
• Court: Michigan Supreme Court

253 Mich. 265

235 N.W. 156

SCHLICKENMAYER

v.CITY OF HIGHLAND PARK.

No. 13.

Supreme Court of Michigan.

Feb. 27, 1931.

Certiorari to Department of Labor and Industry.

Proceeding under the Workmen's Compensation Law by Agnes Schlickenmayer, claimant, for the death of her husband, opposed by the City of Highland Park, employer. The Industrial Accident Board awarded compensation to claimant, and the employer brings certiorari.

Affirmed.

Argued before the Entire Bench. Claude H. Stevens, City Atty., and Earl B. Young, Asst. City Atty., both of Detroit, for appellant.

L. J. Carey, of Detroit, for appellee.

POTTER, J.

Defendant brings certiorari to review an award to plaintiff, widow of deceased, of compensation, by the Industrial Accident Board. Deceased, at the time of his injury, was employed by defendant as a night watchman to guard a concrete mixer, keep children away from it at night, guard defendant's tools and other city property from being stolen, and take care of lanterns, all used in connection with the improvement of Oakland avenue in defendant city. Plaintiff's decedent was struck by an automobile while on Oakland avenue, and so seriously injured he died in the hospital. The presumption of due care attended deceased who was injured on Oakland avenue in the immediate vicinity of his employment. No one who saw the accident testified. Mynning v. D. L. & N. R. R. Co., 64 Mich. 93,31 N. W. 147,8 Am. St. Rep. 804;Adams v. Iron Cliffs Co., 78 Mich. 271, 44 N. W. 270,18 Am. St. Rep. 441;Van Doorn v. Heap, 160 Mich. 199, 125 N. W. 11;Hills v. Blair, 182 Mich. 20, 148 N. W. 243;Baker v. DeLano, 191 Mich. 204, 157 N. W. 427;Patterson v. Wagner, 204 Mich. 593, 171 N. W. 356;Gillett v. Mich. United Traction Co., 205 Mich. 410, 171 N. W. 536. Defendant offered testimony to show the injured man, on his way to the hospital, in response to questions put to him, said he was injured by being struck by an automobile while crossing the street to get some tobacco. It contends this testimony was admissible and was sufficient to overcome the presumption of due care, and show the injury to plaintiff's decedent did not arise out of and in the course of his employment. This testimony was excluded by the Industrial Accident Board.

The right of plaintiff to compensation was not, in his lifetime, vested in deceased. It was not the property of plaintiff's decedent. He had no interest in it. It did not pass to plaintiff from him upon his death-it was not part of his estate. It did not come to plaintiff as an heir. It did not exist at common law. Plaintiff's right to compensation arises from the statute. Decedent's death gave rise ‘to a new and original cause of action or claim in favor of his widow.’ Curtis v. Slater Construction Co., 202 Mich. 673, 168 N. W. 958, 960. Upon the death of decedent, his right to be awarded compensation ceased. Plaintiff's right to compensation is a new and original liability, cast by the statute on the employer-an additional trade risk. To be entitled to compensation, it was incumbent upon plaintiff to present her claim and obtain an award by the Industrial Accident Board, just as a soldier's widow must present and obtain allowance of her claim to a widow's pension, to be entitled thereto. Common-law rights, liabilities, remedies, and procedure are not involved. The statute deals with compensation, not damages; awards, not judgments. Andrejwski v. Wolverine Coal Co., 182 Mich. 298, 148 N. W. 684, Ann. Cas. 1916D, 724;Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N. W. 49; Curtis v. Slater Construction Co., 202 Mich. 673, 168 N. W. 958. The admissions of deceased in his lifetime, if made, were not made in relation to any property of declarant in which plaintiff subsequently acquired an interest. There is no privity of interest between her and deceased. Jones on Ev. par. 239; Kansas City Southern Ry. v. Leslie, 112 Ark. 305, 167 S. W. 83, Ann. Cas. 1915B, 834;Marks v. Reissinger, 35 Cal. App. 44, 169 P. 243;Dowell v. City of Raleigh, 173 N. C. 197.91 S. E. 849;Eldridge v. Barton, 232 Mass. 183, 122 N. E. 272.

‘Privity means mutual succession or relationship to the same rights of property. Privies are those who have mutual or successive relationship to the same right of property or subject matter, such as ‘personal representatives, heirs, devisees, legatees, assignees, voluntary grantees or judgment creditors or purchasers from them with notice of the facts.’' Greenleaf on Ev. pars. 189, 523; Story's Eq. par. 165; Henry v. Woods, 77 Mo. 277;Haley v. Bagley, 37 Mo. 363; Jones on Ev. par. 239.

In Kansas City Southern Ry. v. Leslie, supra, which arose under the Federal Employers' Liability Act (45 USCA §§ 51-59), it was held the admissions of decedent tending to show he was injured because of his own negligence were not admissible against claimant.

‘The legal rights of the heirs or representatives of a deceased person seeking to recover for his death resulting from the wrongful act of another, while growing out of the injury causing the death, are independent of that fact and cannot be defeated or affected by anything the deceased can say or do.’ Marks v. Reissinger, 35 Cal. App. 44, 169 P. 243, 248.

In Dowell v. City of Raleigh, 173 N. C. 197, 91 S. E. 849, 850, a case of death by wrongful act, it is said:

‘The declaration of the intestate as to the condition of the wagon was incompetent. It was not a declaration against interest, as at that time he had no interest to serve or disserve. He had no cause of action himself, as his death was instantaneous, nor did he even have any interest in this cause of action. It is one not known to the...