Adams v. Sebewaing Brewing Co. , 347 Mich. 265 ( 1956 )

347 Mich. 265 (1956) 79 N.W.2d 483

ADAMS
v.
SEBEWAING BREWING COMPANY.

Docket No. 29, Calendar No. 46,861.

Supreme Court of Michigan.

Decided December 6, 1956.

Thomas R. McAllister, for plaintiff.

Warner & Hart (G. Kirk Haley, of counsel), for defendants.

KELLY, J.

Plaintiff's decedent obtained an award from the deputy commissioner under the workmen's compensation act, which award was confirmed by the commission, on review. Defendants thereupon filed application for leave to appeal with the Supreme Court, and on October 7, 1954, an order was entered denying same. Plaintiff's decedent, however, had died on June 23, 1954 (4 months prior to the order of the Supreme Court).

Gertrude L. Adams, as administratrix of decedent's estate, brought action in the circuit court of Huron county to recover a judgment in accordance with the order and award when defendants failed to pay the award.^[*] The lower court entered judgment for plaintiff. Defendants appeal.

The sole question in this case is: Under the workmen's compensation act is the personal representative of an employee who dies pending an appeal entitled to collect the award?

In the case of Brandner v. Myers Funeral Home, 330 Mich. 392, plaintiff was awarded compensation on June 14, 1950, by the commission and on July 10th defendants filed application for leave to appeal to the Supreme Court. This was allowed on September 12th. Plaintiff died on October 18, 1950, and a suggestion of death and prayer for substitution of the administrator of her estate as party plaintiff was filed in this Court by plaintiff's attorneys on December 21, 1950. On December 22d this Court ordered that the cause be revived and proceed to final judgment in the name of the administrator, in the place of the deceased, as party plaintiff. The case was argued and submitted here on April 3, 1951. On April 5, 1951, defendants filed a motion in this Court to dismiss the entire proceedings for benefits under the workmen's compensation act, claiming that they abated with plaintiff's death. Defendants in that case cited Stone v. Smith, 275 Mich. 344; Holtz v. B.F. Keith Detroit Corp., 276 Mich. 72; Hoffman v. Parker Monument Co., 290 Mich. 394; and Nacey v. Utley, 295 Mich. 266. This Court stated (p 395):

"In each of those cases an award had not yet been made by the commission at the time of the employee's death. In opposing the motion, plaintiff relies on Stetu v. Ford Motor Co., 277 Mich. 468; and Houg v. Ford Motor Co., 288 Mich. 478, in which this Court held that compensation which accrued, under a commission award, prior to the employee's death survives to his estate and is collectible by his personal representative. The distinction made in the 2 lines of cases would seem to revolve around the question of whether an award of compensation had or had not been made by the commission prior to the employee's death. In the instant case the award of compensation by the commission antedated plaintiff's death, bringing the case under the rule of the Stetu and Houg Cases. Accordingly, we hold, in the language of the Houg Case (p 482), that ``The award of the department of labor and industry was operative up to the time of plaintiff's death and is to that extent affirmed, and the amount accruing under such award may be paid to the administrator of plaintiff's estate.'"

In accordance with the Brandner opinion, supra, we hold that the award of the commission is operative up to the time of plaintiff's decedent's death and to that extent is affirmed and the amount accruing under such award may be paid to the personal representative of said decedent's estate.

Judgment affirmed, costs to appellee.

DETHMERS, C.J., and SHARPE, SMITH, EDWARDS, CARR, and BLACK, JJ., concurred.

BOYLES, J., took no part in the decision of this case.

NOTES

[*] See CL 1948, § 413.13 (Stat Ann 1950 Rev § 17.187). — REPORTER.