Blust v. Sisters of Mercy

Wiest, J. I cannot concur in the opinion of Mr. Justice Potter. August 26, 1927, plaintiff joined the Sisters of Mercy, a Roman Catholic charitable organization, as *11 a probationer, intending to qualify for admission to membership in the sisterhood, and as “dowry” provided herself with clothing and contributed money for “reception expenses.” At the expiration of six months she became a “novitiate,” wore the habit, and was called “Sister” by members of the order. Her relation as a novitiate was that of free will devotion of efforts and talents to the religious and charitable purposes of the order. She received instruction calculated to qualify her for such service when she should reach full membership, and was provided with suitable care, food, clothing, and shelter, but was to receive no pay, nor was she to be to any expense. The relation was far removed from pecuniary considerations for it contemplated a life in which self should be subordinated to charitable efforts. November 16, 1929, while about domestic duties of a novitiate, she was injured. The Sisters of Mercy cared for her, met all expenses, as in duty bound to do, and there was no interruption of her relation to the order but a continuation to full membership. The department of labor and industry held there was no relation of employer and Employee, under contract of hire, and refused an award of compensation. With that holding I agree. Notwithstanding the cases cited by my Brother, I think the case at bar one of first impression. I find no analogy between instances of work without pay in industrial and professional pursuits, in order to qualify for work with pay, and an instance of entering a charitable and religious order as a novitiate with intent to qualify for membership and a life devoid of pecuniary purpose. In the one instance there is the relation of master and servant and a semblance of hiring, though without wage, but with commercial *12 earmarks, while in the other there is no relation of master and servant, no hiring, and no commercialism, but a devotion to charitable purpose without hope of pecuniary reward. The Sisters of Mercy had employees for hire and elected to.come under the workmen’s compensation act (2 Comp. Laws 1929, § 8407 et seq.) and carried compensation insurance, but members and novitiates were not such, neither did the insurance indemnify the society for the expense of caring for injured members or novitiates. The workmen’s compensation act requires the relation of employer and employee under a contract of hire. Plaintiff was not hired at all. It would be unfortunate to hold that the Sisters of Mercy hire persons to submit to training for membership in the sisterhood. The work of the Sistersv of Mercy, in the care.of indigent and other sick and infirm persons, and in no manner, directly or indirectly, for private profit, constitutes a public charity. The compensation law allows nothing for pain and suffering. Plaintiff testified that any award made herein would not come to her but. would belong to the order, and this by virtue of her relation to the order. Neither at common law nor under the compensation act can plaintiff have remedy against the Sisters of Mercy. It would be a strange situation, indeed, to permit the Sisters of Mercy, one défendant herein, to reimburse itself for expenses' incurred in caring for a novitiate, in the manner here attempted. Plaintiff has no interest in any recovery of an award. She recognizes that her interest in an award is only that of the Sisters of Mercy. If a novitiate is held to be an employee, and the Sisters of. Mercy an employer, then what is the con *13 tract of hire? It cannot he stated for there is none. The determination of the department of labor and industry is affirmed. Clark, McDonald, Sharpe, North, and Fead, JJ., concurred with Wiest, J.