Siebert v. Northport Point Cottage Owners' Ass'n

• Decision Date: 07 March 1967
• Docket Number: No. 6,6
• Parties: Fred SIEBERT, Administrator of the Estate of Magnus Larson, Plaintiff and Appellee, v. NORTHPORT POINT COTTAGE OWNERS' ASSOCIATION, and Hartford Accident & IndemnityCompany, Defendants and Appellants.
• Court: Michigan Supreme Court

Page 790

148 N.W.2d 790

378 Mich. 661

Fred SIEBERT, Administrator of the Estate of Magnus Larson Plaintiff and Appellee, v. NORTHPORT POINT COTTAGE OWNERS' ASSOCIATION, and Hartford Accident & IndemnityCompany, Defendants and Appellants.

No. 6.

Supreme Court of Michigan.

March 7, 1967.

Marcus, McCroskey, Libner, Reamon, Williams & Dilley, Muskegon, Jerry S. McCroskey, Muskegon, of counsel, for plaintiff-appellee.

Charles H. Menmuir, Traverse City, for defendants and appellants.

Before the Entire Bench.

ADAMS, Justice.

Magnus Larson committed suicide one day before his case was decided by the workmen's compensation appeal board. His claim arose on September 28, 1959, and notice was given to the employer on September 19, 1960. It was decided by the referee on November 6, 1962. Review demanded by the defendants was completed by the board of appeals on August 18, 1964. Throughout this time Larson's claim was increasing week by week. When he gave notice, his claim amounted to $1,673.55. When affirmed by the appeal board, it amounted to $8,396.13.

It is maintained that no matter how long the delay in deciding Larson's claim, no matter how many weeks of benefits had accrued before decision by the appeal board, all that was necessary to wipe out his rights was for him to die. Had he lived two more days, there is no question but that his estate could assert and collect what was due him.

I.

Defendants assert that benefits under the workmen's compensation law are personal rights belonging to the injured employee and his dependents and since the workmen's compensation act did not contain a provision for the prosecution of a claim by an administrator, Larson's administrator may not prosecute one.

In Stetu v. Ford Motor Co., 277 Mich. 468, 269 N.W. 236, Houg v. Ford Motor Co., 288 Mich. 478, 285 N.W. 27, Brandner v. Myers Funeral Home, 330 Mich. 392, 47 N.W.2d 658, and Adams v. Sebewaing Brewing Company, 347 Mich. 265, 79 N.W.2d 483, the rule was laid down that where an award of compensation has been made prior to the employee's death an administrator may collect upon the claim. The Court, in Houg said:

'Plaintiff's death terminated defendant's liability for the remainder of such payments which he would have received in case he had lived (2 Comp. Laws 1929, § 8428 (Stat.Ann. § 17.162)), but did not discharge defendant's liability For the payments which had accrued under the order of the department of labor and industry prior to his death. Defendant remained liable therefor and the amounts which had accrued in plaintiff's lifetime are collectible by his personal representative. Stetu v. Ford Motor Co., 277 Mich. 468, 269 N.E. 236.' (Emphasis supplied.)

It will be seen from the above that the main reason the administrator is given the right to pursue the claim is because 'the payments * * * had accrued.' No authorization of such right in the act was deemed necessary. If an administrator may pursue a claim which has accrued under an order of the workmen's compensation commission, why should he not be allowed to pursue an identical claim upon death of the claimant before a final order has been entered? The authority of an administrator not being derived from the act, it must be concluded it is the same in one case as in the other.

II.

It is asserted there can be no final order until the decision of the appeal board because this Court has held that a hearing before the appeal board is De novo. Fawley v. Doehler-Jarvis Div. of National Lead Company, 342 Mich. 100, 68 N.W.2d 768.

The appeal board, in its opinion in this present case, stated:

'In these days when the case load of the Appeal Board and the Hearing Referees are numbered in the thousands and with the time necessary for the determination of right under the procedure section of the statute being measured in years, it only adds insult to injury to tell the estate's administrator that he has no right to proceed except in those cases where final awards have been entered by the tribunal established for resolving the disputes which arose. An unscrupulous employer knowing the time consumed in determining the rights of the parties, could well decide that it is cheaper to let the injured die than to pay him or attempt to save his life when there are no dependents within the meaning of the compensation statute.'

The question is not whether there can be no final order until decision by the appeal board, but whether there need be such a final order.

In Schlickenmayer v. City of Highland Park (1931), 253 Mich. 265, 235 N.W. 156, this Court held that a widow's claim for death benefits arising out of her husband's death in the course of his employment was a new and original liability of the employer and her right to compensation was not derivative from the husband's rights against his employer for the injury causing death. While not necessary to decision in that case, the Court said:

'It (the widow's right to compensation) 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. * * * Upon the death of decedent, his right to be awarded compensation ceased.' (Bracketed material added.)

In Munson v. Christie (1935), 270 Mich. 94, 258 N.W. 415, which involved a claim by the widow and administratrix for an award for medical services that should have been paid by the employer during the lifetime of the employee, the Court granted the benefits but by way of dictum stated:

'It is settled that the rights and benefits afforded the employee by this act do not survive to his heirs as such. And we can agree with appellants that the act contains no provision for prosecution of a proceedings before the commission by a representative of the deceased or of his estate, and therefore such representative cannot petition for an award.'

In Stone v. Smith (1936), 275 Mich. 344, 266 N.W. 374, the question of abatement of weekly benefits was directly considered. An award of compensation for total disability had been made by the deputy commissioner to the employee and was pending on appeal when the employee died. Notice of death was given by Mildred G. Stone in which it was recited that she was the dependent widow and special administratrix of the estate of George E. Stone, the deceased employee, and that death resulted from the injury. The notice requested confirmation of the award of compensation by the deputy commissioner to Stone and that the same be allowed at the rate of $18 a week for the period from September 23, 1933, to the date of death, November 9, 1934. The department entered an order dismissing the proceeding as to George E. Stone but treated the notice as also being an application for adjustment of claim filed in behalf of dependents which it referred to a deputy commissioner for the taking of additional testimony and the determination of rights. This Court upheld the order of the department, pointing out that if the employer had liability it would only be for death benefits to dependents under the act which makes such compensation payable from the date of the injury, and that there could not be two recoveries for the same injury covering the same time--one to the injured employee and the other to his dependents. This Court held:

'His death amounted to an abatement of that proceeding (the employee's claim). After the death of the injured employee, the employer is liable, if at all, under the provisions of 2 Comp. Laws 1929, § 8421 (Section 5 of Part 2) and the other sections of the statute therein referred to (compensation for death benefits to dependents).' (Bracketed material added.)

The holding of Stone was followed in Holtz v. B. F. Keith Detroit Corp. (1936), 276 Mich. 72, 267 N.W. 789. It was further clarified in Mooney v. Copper Range Railroad Company, 318 Mich. 120, 27 N.W.2d 603, where the Court said:

'In the case at bar the claim for compensation was abated only so far as the injured employee was concerned. The proceeding was still pending to determine the rights of the dependent. The purpose in each case was to determine whether the injured employee had suffered a compensable injury and, if so, to grant an award to the injured employee or his dependents. The evidence necessary to establish a compensable injury would of necessity be the same in each case. The term 'abatement' as used in the Stone and Holtz cases does not mean that the dependent must begin a new proceeding. Such dependent may continue the original claim for compensation by the substitution of a new party claimant and continue the proceedings for the purpose of determining the rights of such dependent.'

The key question was stated by the appeal board as follows:

'Does the fact that the Legislature enacted a law which gave the injured employee a right to be compensated for his injury and then having also enacted a provision which gave his dependents a right to certain compensation when the injury is the proximate cause of death foreclose an administrator of the deceased's estate from maintaining an action to secure that which did accrue during the lifetime of the employee where death from causes unrelated to the injury intervened before such employee could secure a determination of his rights?'

In tracing the development of the law, the appeal board analyzed the question as follows:

'When the statute was first enacted in 1912, the Legislature did provide as a part of the death benefit accruing to the dependents certain compensation which could have accrued during the compensable period during the lifetime of the employee when and if 'death results from the injury.' This provision read as follows:

'(Section 5 Part 2, Act #10 Public Acts 1912) 'When weekly payments have been made to an injured employee before his death, the compensation to dependents shall begin from the date of last such payments, but shall not continue more than 300 weeks from the date of injury.'

'The above-noted provision could well account for some of...