Osborne v. Van Dyke

Nettie L. Osborne was employed as a domestic in the home of William Van Dyke and Louise Van Dyke, his wife, in Grosse Pointe, Michigan. According to a declaration filed on or about December 1, 1941, in the Wayne circuit court, she claims that on December 18, 1940, while thus employed, she fell on the bathroom floor in the Van Dyke home and sustained very severe injuries, and that the accident was due to the negligence of the Van Dykes and none of her own. She further alleges that Mrs. Van Dyke, as the actual head of the house, had entered into the contract of employment with her, fixing her duties and agreeing to pay her; that among other things, it was stipulated by Mrs. Van Dyke that plaintiff should accept orders and be directed by herself as well as by her husband, William Van Dyke, in the performance of her domestic duties, and that the authority and duty to give orders to the employees of the house, including plaintiff, reposed in both Mr. and Mrs. Van Dyke. The latter filed an answer stating that Mr. Van Dyke was the employer and denying any negligence on their part and asserting that plaintiff's accident was entirely due to her own negligence. About 14 months later, they filed an amended answer, again asserting that Mr. Van Dyke was the employer and expressly denying that Mrs. Van Dyke entered into the alleged agreement to be plaintiff's employer, and further stating that Mr. Van Dyke, plaintiff's employer, had duly assumed liability under the workmen's compensation act; that plaintiff was subject to the provisions of said act, not having given notice to the contrary; that, therefore, the claim in the circuit court against Mr. Van Dyke is barred, and plaintiff's remedy against him, if any, is before the department of labor and industry of the State of Michigan. The action in the circuit court has not been brought to trial.

Mr. Van Dyke within three weeks after the accident filed a noncompensable report with the department. On March 29, 1943, shortly after defendant's amended answer in the common-law action stating that he was liable exclusively, if at all, under the workmen's compensation act, plaintiff gave notice of claim of injury and also notice and application for adjustment of claim against Mr. and Mrs. Van Dyke and the Hartford Accident Indemnity Company, who insured Mr. Van Dyke against liability under the workmen's compensation act.

Mrs. Van Dyke was alleged to be the employer in the declaration. Obviously, she cannot be held liable for compensation as she never elected to come under the act. Testimony as to the accident and the reasons for the delay in filing of notices, et cetera, has not been taken. The sole question before the deputy commissioner and the department was whether by first bringing the common-law action against both Mr. and Mrs. Van Dyke, jointly and severally, plaintiff, as defendants contend, had made her election, sued a party other than her employer, and was precluded from receiving compensation. The department held that Mrs. Van Dyke had been sued only as an employer and not as a third party other than the employer.

Under part 1, § 4, of the act, 2 Comp. Laws 1929, § 8410 (Stat. Ann. § 17.144), upon electing to come under the act, the employer could only be liable thereunder. This section was amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1943, § 8410, Stat. Ann. 1944 Cum. Supp. § 17.144), but the rule was not changed.

Part 3, § 15, of the act (2 Comp. Laws 1929, § 8454 [Stat. Ann. § 17.189]) reads:

"Where the injury for which compensation is payable under this act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the employee may at his option proceed either at law against that person to recover damages, or against the employer for compensation, under this act, but not against both."

This section of the statute has been before us several times and we have given the construction that the words call for. As a rule this has resulted unfavorably to the claims of the employee.Over-beek v. Nex, 261 Mich. 156; Noto v. Acme Truck Sales Service Co., 270 Mich. 394; Graham v. Michigan MotorFreight Lines, Inc., 304 Mich. 136. If suit had been brought against Mrs. Van Dyke not as an employer but as an independent third-party tort-feasor, no subsequent proceeding could have been successfully maintained before the department against Mr. Van Dyke. The compensation act is to be construed liberally to provide for accidents peculiarly incidental to employment, though it may not be extended beyond its express terms. Simpson v. Lee Cady, 294 Mich. 460. The act should be construed so as to render all of its provisions operative and carry out its purpose and intent. Munson v.Christie, 270 Mich. 94. We cannot read out of part 3, § 15, of the act the words "other than the employer." Had plaintiff in bringing the common-law actions against both Mr. and Mrs. Van Dyke as her employer, in bad faith and as a subterfuge, named Mrs. Van Dyke as an "employer" so as to circumvent the statute, she thereafter would be precluded from claiming compensation. However, the record shows that Mrs. Van Dyke made the contract of hiring and would have control over a domestic in her own home. The fact that over a year later, plaintiff was notified that Mr. Van Dyke claimed to be the sole employer and that, previous to the accident, had elected to come under the compensation act does not prevent her from asserting a claim for compensation, even though she thus is estopped from further prosecuting a claim against Mrs. Van Dyke, also claimed to be an employer. Plaintiff's action in filing application for compensation from Mr. Van Dyke constituted an election to hold him as her employer, thus accepting his claim that he was the employer. She may not recover twice for the same accident, but she is not barred by part 3, § 15, supra, from claiming compensation as her common-law action was brought in good faith against persons whom she had good reason to believe were her employers and were sued in that capacity.

This section of the act is ineptly drawn but a strict adherence to its terms forces us to the conclusion that as Mrs. Van Dyke was sued as an employer, and as no legal liability was asserted against her in any other capacity, plaintiff was not estopped by the common-law action against Mrs. Van Dyke from claiming compensation from Mr. Van Dyke and his insurer before the department. This was the decision of the department on appeal by plaintiff from an adverse decision of the deputy commissioner. We affirm the decision of the department which found as a matter of fact that Mrs. Van Dyke had been sued only as an employer. We allowed an appeal in the nature of certiorari before any testimony was taken as to the timeliness of the notices and whether the accident arose out of and in the course of the employment, et cetera.

The order of the department should be affirmed, with costs to plaintiff, and the case should be remanded to the department for further proceedings.

BUSHNELL and REID, JJ., concurred with BUTZEL, J.