Sergeant v. Kennedy, 62
| Decision Date | 11 June 1958 |
| Docket Number | No. 62,62 |
| Citation | 90 N.W.2d 447,352 Mich. 494 |
| Parties | Jean SERGEANT, Plaintiff and Appellee, v. Florence KENNEDY, Defendant and Appellant. |
| Court | Michigan Supreme Court |
Carl F. Davidson, Detroit, for appellant.
Snider, Feikens, Dice & Thompson and Robert E. Dice, Detroit, for appellee.
Harold A. Cranefield, Kurt L. Hanslowe, Detroit, amici curiae.
Before the Entire Bench.
On or about July 27, 1953 (in the record and briefs we are generously given a choice of several different but close dates) the plaintiff and defendant were employees of Welcome Wagon, Inc. On the morning of that day they had occasion to drive out Gratiot avenue together on the business of their employer. The plaintiff was a passenger and the defendant drove and owned the car. An intersection accident occurred in which the plaintiff was injured. Thereafter her present attorneys, then acting on behalf of her employer, filed with the workmen's compensation commission a notice of commencement of compensation payments and a notice of stopping compensation payments. On the same date plaintiff signed an agreement with her employer to redeem liability for $2,474. After a hearing the commission on November 5, 1954, denied the petition to redeem liability.
Thereafter on December 16, 1954, plaintiff instituted this present civil suit against defendant for injuries allegedly received in the accident of July 27, 1953. By an appropriate pleading (motion for summary judgment of no cause of action) defendant raised the foregoing facts and claimed that the amended workmen's compensation statute hereafter referred to barred the plaintiff's present suit. After hearing the court below denied the motion and defendant has appealed.
Under prior provisions of the act this Court has held that in these circumstances a civil damages suit against a co-employee was not barred. Webster v. Stewart, 210 Mich. 13, 177 N.W. 230. Prior to 1952 an employee had an option and was put to an election: he could in proper circumstances either take compensation benefits under the act or seek civil damages against any person (including a co-employee) other than his employer. He could not however do both.
We find that prior to 1952, and as far back as the time the Webster Case was decided in 1920, the pertinent section of the act (C.L.1948, § 413.15 [Stat.Ann.1950 Rev. § 17.189]) provided 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 nor 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.'
In 1952 the legislature rather elaborately overhauled that section by Act No. 155 of that year, the presently pertinent portion of the amended section (C.L.S.1956, § 413.15 [Stat.Ann.1957 Cum.Supp. § 17.189]) since providing:
'Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than a natural person in the same employ or the employer to pay damages in respect thereof, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall not act as an election of remedies, but such injured employee or his dependants or their personal representative may also proceed to enforce the liability of such third party for damages in accordance with the provisions of this section. * * *'
The phrase 'a natural person in the same employ' was added by the 1952 amendment. In the proper interpretation of this and other changes then made, taken in the full context of the amendment, lies the key to a decision in this case. Defendant urges here as below that the amendment bars the present civil action; plaintiff urges that it does not. We may add that no question is raised here but that the plaintiff and defendant and employer were clearly under the act and that the injuries which were sustained arose out of an accident occurring during the course of employment. Rather the question is, granting all that, whether the plaintiff in these circumstances and in view of the amendment may nevertheless maintain her present civil suit against her co-employee, this defendant.
Elaborate and resourceful are the arguments pro and con advanced by the parties as to the proper interpretation to be given the 1952 amendment. Plaintiff argues among other things that the amendment now serves to abolish the former bugbear of an election of remedies except as to 'a natural person in the same employ' and the employer. 'The statute merely states,' her brief proceeds, 'that as to co-employees the plaintiffs must elect as to which of the two remedies they wish to pursue.' The only logical reading of the amendment, she urges, is as follows:
'Where the injury for which compensation is payable under this Act was caused under circumstances creating a liability in a natural person in the same employ or the employer to pay damages in respect thereto, the acceptance of compensation benefits or the taking of proceedings to enforce compensation payments shall act as an election of remedies.'
The plaintiff's brief then understandably hastily proceeds to assert that plaintiff had made no prior election, did not proceed to enforce compensation, accepted no compensation benefits, and that her voluntary agreement with her employer's insurer (which the commission failed to approve) did not constitute a proceeding or election by her to take compensation. This question, however, we are not required to decide.
We think the 1952 amendment serves henceforth to bar all suits against co-employees by employees for injuries sustained in circumstances otherwise compensable under the act. In saying so we are not so brave as to suggest that legislation cannot occasionally be foolish and wrong-headed; or that this amendment is a model of draftsmanship; and we further suspect that for one to look for logic in all legislation may be as wistfully optimistic as it is vain. But if the amendment before us means what the plaintiff tells us it means--that henceforth careless co-wrokmen merely join their bosses in requiring of an injured...
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...thereby requiring summary dismissal of the suits by virtue of CLS 1961, § 413.15 (Stat.Ann.1960 Rev. § 17.189) and Sergeant v. Kennedy (1958), 352 Mich. 494, 90 N.W.2d 447. The only relevant inquiry, on these motions for summary judgment, should have been whether the evidentiary facts proff......
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...alone against very reputable authority. Kowcum v. Bybee, supra; White v. Ponozzo, 77 Idaho 276, 291 P.2d 843 (1955); Sergeant v. Kennedy, 352 Mich. 494, 90 N.W.2d 447 (1958). Sergeant v. Kennedy, supra, contains interesting 'In saying so we are not so brave as to suggest that legislation ca......
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