Tews v. C. F. Hanks Coal Co.
| Decision Date | 04 June 1934 |
| Docket Number | No. 99.,99. |
| Citation | 267 Mich. 466,255 N.W. 227 |
| Parties | TEWS v. C. F. HANKS COAL CO. et al. |
| Court | Michigan Supreme Court |
Appeal from Department of Labor and Industry.
Proceeding for compensation under the Workmen's Compensation Act by George F. Tews, employee, opposed by the C. F. Hanks Coal Company, employer, and the latter's insurance carrier. From an award of compensation by the Department of Labor and Industry, the employer and insurance carrier appeal.
Award vacated.
Argued before the Entire Bench, except BUSHNELL, J.
Kelley, Sessions, Warner & Eger, of Lansing, for appellants.
Shields, Silsbee, Ballard & Jennings, of Lansing, for appellee.
While plaintiff was in the employ of the C. F. Hanks Coal Company, delivering coal at a compensation of 60 cents per ton and earning an average of $5.28 per day, he met with an accident at a railroad crossing, resulting in the loss of his left leg about five inches below the knee. The accident was reported by the employer. While plaintiff was in a hospital, a representative of the employer's insurance carrier visited him and informed him that $2,000 could be procured from the railroad company for causing the injury, or he could claim compensation from his employer and obtain $2,250 for loss of a foot, payable in weekly installments, and he claims he was advised by the representative that, if he accepted the $2,000 from the railroad company, the insurance company would make up the difference between that amount and what he would be entitled to under the Compensation Law (Comp. Laws 1929, § 8407 et seq.).
The sum of $2,250, mentioned to plaintiff, as compensation for loss in his case, was wrong in fact, for the leg was amputated below the knee and within a fraction of an inch above the point constituting it a loss of the foot, and therefore was a loss of the leg, and, for loss of the leg, compensation would be more.
After receiving the $2,000 from the railroad company, plaintiff filed application for compensation from his employer, and, upon a hearing before a deputy commissioner, his application was denied, evidently on the ground that he had elected to have damages from a third party. Upon appeal to the board he was awarded full compensation, less the $2,000 paid him by the railroad company. The board, in an opinion, found that plaintiff accepted the sum from the railroad company under assurance that it would not prevent him from having additional compensation from his employer, and held that such assurance prevented application of the statutory rule otherwise following an election to have remedy against the third party causing the injury. This presents the important issue of law.
The board found a fraud was practiced upon plaintiff, and this presents the question of whether the board can declare an election, otherwise valid, to be no election because of fraud.
The Compensation Law of this state provides: ‘Where the injury for which compensation is payable...
To continue reading
Request your trial
-
Downie v. Kent Products, Inc.
...derogation of the common law, and totally outside it, Solakis, supra, 395 Mich. p. 20, 233 N.W.2d 1, quoting Tews v. C.F. Hanks Coal Co., 267 Mich. 466, 468-469, 255 N.W. 227 (1934), there is no "common liability" in tort between the third-party defendant and the employer--a prerequisite to......
-
Hagopian v. City of Highland Park
...Co., 297 Mich. 226, 297 N.W. 475. The measure of relief under the act may not be extended beyond its precise terms. Tews v. C. F. Hanks Coal Co., 267 Mich. 466, 255 N.W. 227. The title to the act was changed when the occupational disease amendment was adopted. In the amendment by Act No. 24......
-
Rowell v. Security Steel Processing Co.
...exclusive relief in its own terms." [Solakis v. Roberts, 395 Mich. 13, 20, 233 N.W.2d 1 (1975), quoting Tews v. C.F. Hanks Coal Co., 267 Mich. 466, 468-469, 255 N.W. 227 (1934).] B Subsection 3 provides that "the average weekly wage shall be based upon the total wages earned by the employee......
-
Solakis v. Roberts, s. 8--9
...§ 418.131; M.S.A. § 17.237(131); Ladner v. Vander Band, 376 Mich. 321, 325, 136 N.W.2d 916 (1965). In Tews v. C. F. Hanks Coal Co., 267 Mich. 466, 468--469, 255 N.W. 227, 228 (1934), 3 this Court 'The compensation act is in derogation of the common law and, therefore, its measure of relief ......