Osborne v. Van Dyke

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 88 This case involves a claim for compensation under the workmen's compensation act. Defendant William Van Dyke is an employer subject to the workmen's compensation act, including household domestic servants. Defendant Louise Van Dyke is his wife, not subject to the workmen's compensation act. Defendant Hartford Accident Indemnity Company is the insurer covering liability of William Van Dyke under the act. Nettie Osborne, plaintiff herein, was a household domestic servant in the home of William and Louise Van Dyke. She claims to have fallen in the bathroom of the home and injured herself. William Van Dyke filed a report of noncompensable accident with the department of labor and industry January 7, 1941. On December 4, 1941, Nettie Osborne started a suit for damages in the Wayne county circuit court against *Page 93 "William Van Dyke and Louise Van Dyke, his wife, jointly andseverally." In her declaration filed in that case plaintiff claims: "2. A long time prior to December 18, 1940, defendant, LouiseVan Dyke, entered into an agreement of employment with plaintiff, by the terms of which, among other things, plaintiff was to reside in the household as a domestic and, particularly, to do the cooking for the household, and defendant, Louise VanDyke, as the actual head of the house, agreed to pay plaintiff certain weekly wages then and there fixed and agreed upon." The declaration further alleges that plaintiff became a member of the household, that it was the "joint and several" duty of the defendants to provide plaintiff with safe living quarters, and that notwithstanding such duty the defendants did negligently furnish and equip the premises with objects of a dangerous nature, particularly by placing on the bathroom floor a rug which was unsafe for use on a smooth, glossy floor, as a result of which plaintiff slipped and fell, causing serious bodily injuries, for which she claimed $30,000 damages. Issue was joined and this suit is still pending against both defendants. In his amended answer filed in the above suit William Van Dyke denied jurisdiction of that court as against him on the ground that he was operating under the provisions of the workmen's compensation act, and that plaintiff had not given notice not to become subject to its provisions. As to that, we must conclude that under the statute, and the decisions of this court, the circuit court would not have jurisdiction over plaintiff's claim for damages against William Van Dyke. 2 Comp. Laws 1929, § 8410 (Stat. Ann. § 17.144). As to later amendment, see Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. *Page 94 1943, § 8410, Stat. Ann. 1944 Cum. Supp. § 17.144). See, also, cases cited later in this opinion. That case can be maintained only as a suit against Louise Van Dyke, with the damages, if allowed, recoverable only against her. In her declaration plaintiff alleges that her contract of employment was with Louise Van Dyke, and that her injury was "jointly and severally" caused by breach of duty and the negligence of the defendants. Louise Van Dyke had the legal right to enter into such a contract of employment, her separate estate might be held liable in damages for her own tort, and plaintiff could sue Louise Van Dyke and pursue her remedy against Louise Van Dyke the same as if Louise Van Dyke were a feme sole. 3 Comp. Laws 1929, § 14014 (Stat. Ann. § 27.658). The mere fact that Louise Van Dyke is the wife of defendant William Van Dyke from whom plaintiff is seeking to recover compensation under the workmen's compensation act does not deprive plaintiff of the right to maintain an action at law against Louise Van Dyke. But when plaintiff started a law action against Louise Van Dyke she deprived the department of labor and industry of jurisdiction to award plaintiff compensation against William Van Dyke as her employer, for the same injury. On March 29, 1943, plaintiff served a notice of claim for injury on William Van Dyke and Louise Van Dyke under the workmen's compensation act, and filed a notice and application with the department of labor and industry for an adjudication against them. At the time of the hearing before a deputy commissioner the application was dismissed as to Louise Van Dyke, it being admitted that Louise Van Dyke was not subject to the compensation act; and the deputy commissioner also dismissed the application *Page 95 as to William Van Dyke on the ground that a suit had been started by plaintiff in the Wayne circuit court against William Van Dyke and Louise Van Dyke jointly and severally and therefore plaintiff could not maintain a claim before the department against William Van Dyke for compensation. The department on review of the findings of the deputy reversed his order and sent the case back to the deputy commissioner for trial "on its merits." We granted leave to appeal, the defendants contending that plaintiff by starting a suit at law against Louise Van Dyke for damages had elected to pursue her remedy against a third person who was not under the workmen's compensation act, and that therefore the department of labor and industry had no jurisdiction over the matter. That is the only question before us. The provision of the workmen's compensation act (2 Comp. Laws 1929, § 8454 [Stat. Ann. § 17.189]) on which defendants rely, in effect at the time this cause of action arose, reads as follows: "SEC. 15. 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, and if compensation be paid under this act the employer may enforce for his benefit or for that of the insurance company carrying such risk, or the commissioner of insurance, as the case may be, the liability of such other person." The record before us indicates that on the hearing before the deputy commissioner counsel for plaintiff claimed that Louise Van Dyke was plaintiff's *Page 96 employer, notwithstanding that his present claim for compensation against William Van Dyke depends on William Van Dyke being plaintiff's employer. He stated: "I am prepared to show that Mrs. Osborne originally was employed by what she considered to be an employer, by Mrs. Van Dyke. * * * I don't admit and I don't state now, I don't stipulate, and I didn't know this was included in the stipulation that she was employed by Mr. Van Dyke. I want to show — "The Commissioner: Let me ask you a question, Mr. Lorenzo, whose employee do you claim her to be at the time of this accident? "Mr. Lacey: In this court. "Mr. Lorenzo: If I can explain it in my own words, it came about this way: Mrs. Osborne was employed by Mrs. Van Dyke, as she understood." The case we now have before us, for compensation against William Van Dyke under the act, can be maintained only on the theory that he was the employer. Louise Van Dyke is not under the compensation act. If, as counsel for plaintiff seemingly now tries to claim, William Van Dyke was the employer, still plaintiff cannot recover compensation from William Van Dyke under the workmen's compensation act, having elected her remedy by starting suit against Louise Van Dyke. Plaintiff cannot pursue both remedies. Under the terms of the act and the decisions of this court, the department of labor and industry does not have jurisdiction to award compensation against William Van Dyke after plaintiff had started suit "severally" against Louise Van Dyke to recover damages for the same injury. This question has many times been before us and has been settled by this court. Brabon v.Gladwin Light Power Co., 201 Mich. 697; Oleszek *Page 97 v. Ford Motor Co., 217 Mich. 318; Varga v. Detroit EdisonCo., 240 Mich. 593; Simon v. Cadillac Motor Car Co.,242 Mich. 93; Bross v. City of Detroit, 262 Mich. 447; Dailey v. River Raisin Paper Co., 269 Mich. 443; Noto v. Acme TruckSales Service Co., 270 Mich. 394; Cell v. Yale TowneManfg. Co., 281 Mich. 564; Graham v. Michigan Motor FreightLines, Inc., 304 Mich. 136; Nichols v. Ford Motor Co.,306 Mich. 268. See, also, 3 Comp. Laws 1929, § 8410, as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1943, § 8410, Stat. Ann. 1944 Cum. Supp. § 17.144). Admittedly if the suit against Louise Van Dyke is one against a third-party tort-feasor, plaintiff is barred from obtaining compensation against William Van Dyke under the act. But it has been said that plaintiff's suit against Louise Van Dyke is against her as plaintiff's "employer," and not against Louise Van Dyke as a "third-party" tort-feasor; and that therefore plaintiff is not barred from obtaining compensation against William Van Dyke under the act. Under that theory, plaintiff could recover compensation from William Van Dyke as her "employer," under the workmen's compensation act; and subsequently recover damages for the same injury against Louise Van Dyke as her "employer" (not as a "third-party" joint or several tort-feasor), in a law action. The absurdity of such a position is apparent. Any injured party could start suit in court (see Nichols v. Ford Motor Co.,supra) against two defendants for damages, claiming one of them was the employer, file an application for compensation with the department of labor and industry, claiming the other one was the employer, maintain one position in court and the opposite before the department and still recover compensation against one of them, under the act. *Page 98 Such a construction would permit a complete nullification of that part of the act (hereinbefore quoted) which declares that where the injury was caused under circumstances creating a legal liability in some person other than the employer, the employee may proceed either at law against that person to recover damages, or against the employer under the act, but not againstboth. Furthermore, where plaintiff takes contradictory positions, an assertion of the first claim is a negation of the second. In Noto v. Acme Truck Sales Service Co., supra, at p. 401, Mr. Justice NORTH quoted with approval from Washburn v.Peck, 245 Mich. 351, 352, as follows: "One may not take contradictory positions in asserting a right in court, if the assertion of plaintiff's right in the first case involves a negation of the right as claimed in the second case." A situation quite similar to the case at bar arose in Noto v.Acme Truck Sales Service Co., supra, where the plaintiff had sued two defendants, Lavery and Acme Truck Sales Service Company, in a law court and later filed a claim for compensation against Acme Truck Sales Service Company before the department of labor and industry. The issue was as to which was the employer. The department held that the Acme Truck Sales Service Company was the employer and granted compensation. In vacating the award of compensation, this court (399, 401) said: "It may be granted that the suit at law was dismissed as against the Acme Truck Sales Service Company on the ground that it and Noto were both under the workmen's compensation act, but it would not follow that the suit instituted against Lavery charging him for liability incident to this same accident *Page 99 should have been dismissed. From a legal standpoint the situation is not different than it would have been if the suit in the Wayne county circuit court had been instituted and prosecuted against Lavery alone; and clearly prosecution of such an action would have constituted an election of remedies. * * * "The workmen's compensation act expressly provides that the injured employee or his dependents may exercise the option of proceeding at law against the wrongdoer to recover damages or on the other hand a proceeding for compensation may be instituted against the employer, `but not against both.'" The question is not before us at this time as to whether plaintiff may maintain her pending suit against Louise Van Dyke. Doubtless that question will be decided in due time by the court in which that suit is pending. The order of the department holding that it has jurisdiction of the claim for compensation against William Van Dyke is reversed and the case remanded for entry of an order denying compensation, with costs. STARR, C.J., and NORTH, WIEST, and SHARPE, JJ., concurred with BOYLES, J. *Page 100