Naert v. Western Union Telegraph Co.

172 N.W. 606, 206 Mich. 68, 1919 Mich. LEXIS 619

• Court: Michigan Supreme Court
• Decided: May 29, 1919
• Docket: Docket No. 70
• Status: Published

Opinion

Brooke, J.

(after stating the facts). We have held (Vereeke v. City of Grand, Rapids, 203 Mich. 85), that a beneficiary by accepting compensation under the act from her decedent’s employer did not thereby release the original wrongdoer “from liability in an action for the benefit of the heirs at law or the creditors,” of the deceased. The converse of that proposition is here presented. Did Romanie Naert by accepting a settlement as administratrix of her son’s estate or as an individual for all claims against the Cottage Grove Creamery Company, growing out of her son’s death, thereby release her son’s employer from liability under the act? We think not. The act provides, section 1 of part 6 (2 Comp. Laws 1915, § 5488), as follows:

“If the employee, or his dependents, in case of his death, of any employer subject to the provisions of this act files any claim with, or accepts any payment from such employer, or any insurance company carrying such risks, or from the commissioner of insurance on account of personal injury, or makes any agreement, or submits any question to arbitration under this act, such action shall constitute a release to such employer of all claims or demands at law, if any, arising from such injury.”

As was pointed out in the Vereeke Case, the act nowhere compels election on the part of the dependent as it does on the part of the injured party himself. We are disposed to hold that the releases executed by Romanie Naert to the Cottage Grove Creamery Company were of no force and effect, as between the employer of the dead boy and the Cottage Grove Creamery Company, in an action brought by the telegraph company to recover the compensation it is called upon to pay under the award of the board. Section 15 of part 3 (2 Comp. Laws 1915, § 5468) clothes the employer with the absolute right to recover such payments as it is obliged to make from the third person legally liable for the injury. Such third person, in this case, the Cottage Grove Creamery Company, in adjusting a claim with the legal representatives of the injured person must be held to have proceeded with knowledge of the fact that it might be called upon to respond to the employer who is primarily legally liable under the terms of the act to the injured party or to his dependents in case of his death. The industrial accident board held under such proofs as were introduced at the hearing that the death of the boy was not caused “under circumstances creating a legal liability” in the Cottage Grove Creamery Company; that the payment of $200 to Romanie Naert was a mere gratuity and that her releases to the Cottage Grove Creamery Company constituted no bar to her right to compensation from the telegraph company.

Under our view of the case it is unnecessary to either agree or disagree with these holdings. So long as the telegraph company is left free to proceed against the Cottage Grove Creamery Company as though no settlement had been made it has ho reason for complaint, and that we hold to be its present status herein.

The award is affirmed.

Bird, C. J., and Ostrander, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred..