Trellsite Foundry & Stamping Co. v. Enterprise Foundry, 23

• Decision Date: 28 December 1961
• Docket Number: No. 12,No. 23,D,23,12
• Citation: 365 Mich. 209,112 N.W.2d 476
• Parties: TRELLSITE FOUNDRY & STAMPING COMPANY, American State Insurance Company, Plaintiffs and Appellants, v. ENTERPRISE FOUNDRY, Corporate Service, Aluminum Alloy Company, Michigan Mutual Liability Company, City Pattern Foundry & Machine Company, Industrial Casting Foundry, Grant Brothers Foundry, Highway Casualty Company, Stuart Foundry, Great Lakes Foundry, Associated Indemnity Company, Northern Cast Alloy Foundry, Employers Mutual Liability Company, Fisher Body Company, Plantefendants and Appellees.
• Court: Michigan Supreme Court

Page 476

112 N.W.2d 476

365 Mich. 209

TRELLSITE FOUNDRY & STAMPING COMPANY, American State

Insurance Company, Plaintiffs and Appellants, v. ENTERPRISE FOUNDRY, Corporate Service, Aluminum Alloy

Company, Michigan Mutual Liability Company, City Pattern

Foundry & Machine Company, Industrial Casting Foundry, Grant

Brothers Foundry, Highway Casualty Company, Stuart Foundry,

Great Lakes Foundry, Associated Indemnity Company, Northern

Cast Alloy Foundry, Employers Mutual Liability Company,

Fisher Body Company, Plant No. 23, Defendants and Appellees.

No. 12.

Supreme Court of Michigan.

Dec. 28, 1961.

Mansfield, DeWitt, Sulzbach & Jenkins, Detroit, for appellants, Herbert H. Sulzbach, Detroit, of counsel.

Lacey & Jones, Detroit, for defendants and appellees Enterprise Foundry and Corporate Service, Inc.

Markle & Markle, Detroit, for defendants-appellees Grant Brothers Foundry and Highway Cas. Co.

Before the Entire Bench, Except SMITH, J.

DETHMERS, Chief Justice.

Ira D. Jenkins was, for 15 years, employed as a sand molder, successively by the several industrial companies which are parties plaintiff or defendant in this case. The employment exposed him to a sandy, dustry atmosphere. He filed a claim for workmen's compensation, naming plaintiff foundry company, hereinafter called Trellsite, as his employer. It was his last employer. He claimed a disability resulting from dust exposure and described its nature as silicosis, pneumoconiosis and other lung injuries.

The hearing referee denied benefits after finding that Jenkins had not received a personal injury arising out of and in the course of his employment with Trellsite. An appeal to the board resulted in reversal, a finding of lung fibrosis which had developed from exposure to causes and conditions characteristic of and peculiar to the business of Trellsite, and an award of compensation at $36 per week until further order but not to exceed a total of $10,500. Within the period allowed for seeking an appeal to the Supreme Court, Jenkins, Trellsite and its insurer, plaintiff insurance company, agreed on a redemption of liability by payment of a lump sum of $7,473. It was approved by the workmen's compensation department and payment was made by plaintiff insurance company.

This is an apportionment proceeding against Jenkins' prior employers, who, with their insurers, are the defendants herein. The hearing referee entered and apportionment order requiring the several defendants to pay plaintiffs shares of the payment plaintiffs had made to Jenkins in such proportions as in the statute provided. C.L.1948, § 417.9 (Stat.Ann. § 17.228). On appeal the board reversed, holding the apportionment provision of the statute unconstitutional and citing, in support, Benton Harbor Malleable Industries v. General Motors Corporation, 358 Mich. 684, 101 N.W.2d 281. Thinking some clarification of the decision in that case desirable, we allowed appeal here in the instant case.

In Benton Harbor Malleable we held that the last employer, after making a lump sum settlement as to workmen's compensation with deceased employee's dependent before determination of liability by the appeal board, was not entitled to contribution from a prior employer which had not had actual notice of the hearing on compensation, under the above cited apportionment provision of the statute which requires no notice of that hearing to prior employers. We said that to hold otherwise would effect a denial of due process to defendant, a prior employer, in violation of Federal and State Constitutions. U.S.Const. Amend. 14; Const. art. 2, § 16.

Plaintiffs seek to distinguish that case from the case at bar on the ground that here the redemption of liability agreement was not entered into until the appeal board had determined plaintiffs' liability to Jenkins and no opportunity for escape therefrom remained to plaintiffs other than an appeal to the Supreme Court, which they insist, under our previous decisions, would have been futile. This distinction is not only idle but beside the point. Had an award for claimant and against his last employer been made by the appeal board and affirmed by this Court in either case, it would have been conclusive against that employer only, and not at all as against prior employers who had received no notice of and taken no part in the hearing on compensation.

Plaintiffs stress that at the apportionment hearing they did not content themselves with introduction of the record of the original proceedings to establish liability, but also introduced medical and other testimony for that purpose. They point to this and the fact that the hearing referee, while taking the position that plaintiffs thus had made a prima facie case, held that defendants might offer rebuttal testimony. All this, say plaintiffs, combined to afford defendants due process. In this connection plaintiffs direct attention to the language in our per curiam opinion on motion for rehearing in Benton Harbor Malleable, in which we say that our preceding opinion in that case 'may not be read as holding the apportionment statute unconstitutional except as to the application sought herein.' [358 Mich. 684, 101 N.W.2d 284.] Plaintiffs make no mention, however, of the immediately succeeding language that, 'there being in this case neither statutory requirement of notice, nor actual notice voluntarily served on the former employer as to the hearing on compensation, the deficiencies of the apportionment statute as sought to be applied here by the last employer are such as to require the disposition above.' That language alone would be conclusive of the matter at bar, requiring affirmance, because here, also, there was no actual notice served on the prior employers as to the hearing on compensation.

The claimed distinctions between the two cases are without relevant significance and in no wise persuasive of a different result.

We disavow, however, the urged interpretation of the initial opinion of this Court and its per curiam on motion for rehearing in Benton Harbor Malleable, to the effect that the apportionment provision of the statute meets the tests of constitutionality when actual notice of the hearing on compensation has been served upon prior employers or they have participated in such hearing or been accorded the opportunity, at the apportionment hearing, to contest liability. The last employer's right to contribution springs from that statutory provision alone. If its application according to its plain terms be unconstitutional, there remains no legal or valid basis for the right.

We are, of course, aware of the instances in which, while holding a statutory or ordinance provision violative of constitutional due process requirements as sought to be applied to the particular facts and circumstances of the case then at bar, we have indicated its possible validity in general under other factual situations. Typical are zoning cases. In Moreland v. Armstrong, 297 Mich. 32, 297 N.W. 60, and in many others we have said that each zoning case must be determined on its own facts and circumstances. See, also, Senefsky v. City of Huntington Woods, 307 Mich. 728, 12 N.W.2d 387, 149 A.L.R. 1433. And so, in Pringle v. Shevnock, 309 Mich. 179, 14 N.W.2d 827, this Court held a zoning ordinance arbitrary as applied to the property in question, but said that we were not called upon to decide whether it was arbitrary or reasonable as to other property in the same zone. But cases of that tenor involve questions of substantive, never procedural due process. The concept of procedural due process was deeply rooted in American jurisprudence from an early day, but that of substantive due process appeared in the cases at about the middle of the 19th century. See 3 Willoughby on the Constitution of the United States (2d ed.), pp. 1681-1706. In the latter field, particularly in those cases relating to exercise of the police power as affecting property or other substantive rights, reasonableness was made the test of validity. City of North Muskegon v. Miller, 249 Mich. 52, 227 N.W. 743; Pere Marquette R. Co. v. Muskegon Township Board, 298 Mich. 31, 298 N.W. 393. Naturally, a statutory provision affecting private substantive rights in the interests of the general welfare might be reasonable and hence valid in its application to certain circumstances and the reverse as applied to others. The test of reasonableness has not, however, been applied to the right of procedural due process. It is absolute. Statutory enactments authorizing proceedings for taking life, liberty or property without providing for procedural due process therein cannot stand under constitutional exactments. As applied to the instant case, the apportionment provision of the statute, in failing to provide for notice of hearing on compensation to prior employers, is unconstitutional, leaving no legal basis for a right of apportionment or contribution, regardless of whether notice is or is not served on former employers in a given case. The fact that such notice was not given in this case is, therefore, of no controlling consequence. This conclusion, we think, follows inescapably from the following authorities with which we are in accord.

In Rassner v. Federal Collateral Society, Inc., 299 Mich. 206, 300 N.W. 45, this Court held a statute unconstitutional on the ground that it was violative of due process requirements because it permitted pawnbrokers, in certain circumstances and proceedings, to be deprived of possession of pawned articles without notice or hearing. We quote from the syllabi in that case the following:

'No one, consistent with constitutional safeguards, can be deprived of possession of property without reasonable notice and an opportunity to be heard.' (Syllabus 3.)

'The constitutionality of a statute must rest upon the provisions of the statute itself and not upon the grace or favor of a court in giving the notice and affording the opportunity for...