Viaene v. Mikel

• Decision Date: 04 September 1957
• Docket Number: No. 26,26
• Citation: 84 N.W.2d 765,349 Mich. 533
• Parties: Cyriel VIAENE, Plaintiff and Appellee, v. William MIKEL, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 765

84 N.W.2d 765

349 Mich. 533

Cyriel VIAENE, Plaintiff and Appellee, v. William MIKEL, Defendant and Appellant.

No. 26.

Supreme Court of Michigan.

Sept. 4, 1957.

Atlas & Rowe, Detroit, for appellant.

Markle, Markle & Eubank, Detroit, for appellee.

Before the Entire Bench.

EDWARDS, Justice.

Cyriel Viaene was a carpenter. His claim before the workmen's compensation commission, filed January 12, 1955, shows that he suffered compound comminuted fractures of the right leg, ankle and foot, on September 6, 1949, when a scaffold collapsed while he was working on a house. His employer was the builder--one William L. Mikel, the defendant and appellant in this proceeding. The claim also asserts that Mr. Viaene, the plaintiff and appellee in this proceeding, is still totally disabled.

When this matter was set for hearing before a referee of the workmen's compensation commission on June 16, 1955, defendant's counsel appeared and made a motion to dismiss. The motion contended that plaintiff, having previously filed and lost a circuit court negligence suit against the same defendant, was barred from the instant proceeding by having made a final election of remedy.

After argument and submission of briefs, the referee denied the motion to dismiss. Appeal was taken from that denial to the workmen's compensation appeal board, and the referee's denial of the motion recited was affirmed by order of the appeal board. On leave granted by this Court, appeal is now taken from that order.

A portion of the opinion on review of the appeal board is pertinent to our current discussion:

'As of the time of the claimed injury, September 6, 1949, and the defendant was not an approved own risk carrier under the provisions of the workmen's compensation act and did not carry workmen's compensation insurance. He was, however, subject to the act if he regularly employed 4 or more employees at that time. Plaintiff avers that he did not know how many employees the defendant had at the time of his injury; that this information was not available to him and that he did not know the facts with regard thereto until the testimony was presented in the circuit court hearing. The decision of the circuit court denying him relief therein was not based upon any finding as to the number of employees employed by the defendant.

'In support of its contention that plaintiff is barred from proceeding under the workmen's compensation act, the defendant cites the case of Osborne v. Van Dyke, 311 Mich. 86, 18 N.W.2d 374. The cited case is clearly distinguishable from the present case. In the Van Dyke case there were two different employers and the claim of being an employee of the one was inconsistent with the claim of being an employee of the other. In the present situation the plaintiff's claim in both the circuit court and the workmen's compensation proceedings has consistently been that he was an employee of the defendant at the time of his injury. The only jurisdictional inconsistency between the two proceedings is that workmen's compensation was the proper forum if the defendant regularly employed 4 or more employees, whereas circuit court was the proper forum if the defendant did not regularly employ 4 or more employees. The number of the defendant's employees was a matter which was peculiarly within the knowledge of the defendant. The plaintiff had no certain knowledge on the subject and the only way he could find out was to start a proceeding. Which proceeding he started first was necessarily a matter of chance. To hold under such circumstances that he proceeded at his peril would be to turn workmen's compensation procedure into a game of Russian roulette.'

It should be noted at the outset that the opinion just quoted is in error as to the number of employees required by the workmen's compensation statute to vest exclusive jurisdiction in the workmen's compensation commission as of the date in question. As of September 6, 1949, the statutory figure was eight employees rather than the four recited in the opinion. P.A.1943, No. 245 (C.L.1948, § 411.2a [Stat.Ann.1943 Cum.Supp. § 17.142(1)]) as amended by P.A.1949, No. 238 (C.L.S.1954, § 411.2a [Stat.Ann.1950 Rev. § 17.142(1)]), effective September 23, 1949.

Appellant presents to us for our review only one question: 'May an injured employee sue his employer in circuit court and then, after a full and complete hearing on the merits, sue his employer in the workmen's compensation department?' We believe that this question implies three legal defenses, two of which are briefed and argued to us by appellant while the third appears to be the real issue in the case. These defenses are as follows: (1) That plaintiff-appellee has made an election of remedies; (2) That in his second proceeding he is estopped because of inconsistency of the second remedy with the one first sought; and (3) That plaintiff-appellee's workmen's compensation proceeding is barred by the circuit court judgment on grounds of res adjudicata. We shall discuss and decide these in order.

1. Election of Remedies. Appellant contends that when Mr. Viaene, the plaintiff-appellee, went into the circuit court and sought and received a trial of his negligence action involving this accident that this, of and by itself, represented an election of remedies which bars his current proceeding. Appellant cites to us for authority on this point Twork v. Munising Paper Co., 275 Mich. 174, 266 N.W. 311; and Morris v. Ford Motor Co., 320 Mich. 372, 31 N.W.2d 89.

It is plaintiff's claim that the facts in relation to the number of employees of defendant-appellant Mikel were peculiarly within the employer's knowledge, and that although he, the plaintiff, filed suit in circuit court implying jurisdiction therein, that during the course of trial testimony developed which either implied or indicated that on the crucial date Mikel had eight or more employees. It is plaintiff's contention, likewise, that the circuit court proceeding never decided this issue as a matter of fact but that the circuit judge without determining the jurisdiction problem posed by the number of employees, dismissed the suit, after plaintiff's proofs, on the ground that no negligence had been shown. It is plaintiff's contention that he never had but one remedy, but was unable to ascertain accurately which it was until certain preliminary facts had been discovered. He relies upon Hansen v. Pere Marquette R. Co., 267 Mich. 224, 225 N.W. 192.

It is clear that, under the then existing statute, if defendant-appellant Mikel had fewer than eight employees on September 6, 1949, no jurisdiction existed in the workmen's compensation commission, and plaintiff's only remedy, if he had one, would be at common law in the circuit court on allegation of negligence.

It is equally clear that if, on the other hand, on September 6, 1949, defendant-appellant Mikel had eight or more regular employees, exclusive jurisdiction was vested in the workmen's compensation commission and no jurisdiction ever existed in the circuit court to hear and decide the litigation filed therein.

This Court long ago stated the legal principle succinctly as follows:

'An election of remedies implies that a party has a choice of remedies.' Bryant v. Kenyon, 123 Mich. 151, 155, 81 N.W. 1093, 1094.

In Hansen v. Pere Marquette R. Co., 267 Mich. 224, 255 N.W. 192, 193, Justice Potter reiterated the same principle:

'It is claimed, plaintiff by commencing suit in the federal court, made an election of remedies. To constitute an election of remedies, there must be in fact two or more available remedies between which the party has a right to elect. 20 C.J. 20. An election of remedies implies that a party has a choice of remedies. Bryant v. Kenyon, 123 Mich. 151, 81 N.W. 1093. There is a difference between an election of remedies and a mistake of remedy, and the law has not gone so far as to deprive parties of meritorious claims merely because of attempts to collect them by inappropriate actions upon which recovery could not be had. McLaughlin v. Austin, 104 Mich. 489, 62 N.W. 719; McAfee v. Bankers' Trust Co., 262 Mich. 276, 247 N.W. 180. Had plaintiff first prosecuted his claim before the Department of Labor and Industry and it had found he was engaged in interstate commerce at the time of injury, and he had then begun suit in the federal court and his case had been there dismissed because he was not engaged in interstate commerce, plaintiff would have been penalized for his mistake.'

The general rule on this matter is cited by American Jurisprudence as follows:

'While there is some conflict of authority on the question whether the institution of an action at law bars a subsequent claim under the compensasation act where such action is unsuccessful or unavailing, the rule generally prevailing is that it has such effect only where, or to the extent that, such action constitutes an appropriate and effectual remedy for the injury in question.' 58 Am.Jur., Workmen's Compensation, § 65.

Further, an A.L.R. annotation provides the following language:

'It has generally been held that where an injured employee, under a mistake of law or fact, brings an action for damages against his employer which he is not entitled to maintain, he is not precluded, on the ground of election or estoppel, from claiming compensation under a workmen's compensation act.' 94 A.L.R. at page 1432.

Utah Idaho Central R. Co. v. Industrial Commission of Utah, 84 Utah 364, 35 P.2d 842, 94 A.L.R. 1423; Tate v. Estate of

Dickens, 276 App.Div. 94, 93 N.Y.S.2d 504. See annotation 94 A.L.R. at page 1430 and cases cited thereunder.

In asserting that the doctrine of election of remedes bars appellee's claim, appellant relies upon the Twork and Morris cases cited by him as noted above. Both of them, however, involve the reverse situation where a claimant having proceeded to determination of his claim under workmen's compensation proceedings...