
    VEREEKE v. CITY OF GRAND RAPIDS.
    1. Master and Servant — Workmen’s Compensation Act — In« jured Employee — Election of Remedies.
    Under section 15, part 3, of the workmen’s compensation act (2 Comp. Laws 1915, § 5468), an injured employee must make an election; and he cannot proceed against his employer for compensation and also against a third party, the wrongdoer, for damages.
    
    
      2. Same — Right of Action Against Wrongdoer Conferred Upon Employer.
    Under the same section, when an employer pays compensation he is empowered to recover such sums as he pays from the wrongdoer for his own benefit.
    3. Same — Release of Employer from Action at Law — Wrongdoer Not Released from Action by Administrator.
    But the only limitation under said act upon the right of a dependent who accepts compensation from an employer is to release said employer from all claims or demands at law, if any, arising from such injury; and it cannot be contended that a dependent, by accepting compensation from an employer, thereby releases the wrongdoer from liability in an action for the benefit of. heirs at law or creditors of a deceased employee.
    4. Same — Dependent’s Award Not Affected bt Administrator’s Suit.
    Where a city employee was accidentally killed, 'and the mother made a claim and was awarded compensation as a dependent under the workmen’s compensation act, thereby clothing the city with a right of action against the wrongdoer, and the city failed to prosecute its right of , action under section 15, part 3, of said act, it could not, by petition to the industrial accident board, hate credited upon the award against it any sums received by the mother as a result of a suit brought by the administrator of the deceased son’s estate against the wrongdoer. •
    Certiorari to Industrial Accident Board.
    Submitted June 13, 1918.
    (Docket No. 44.)
    Decided September 27, 1918.
    Kate Vereeke presented her claim for compensation against.the city"of Grand Rapids for the accidental death of her son in defendant’s employ. On petition of defendant to discontinue payments under an award. From an order denying the petition, defendant brings certiorari.
    Affirmed.
    
      Gamón Taggart, City Attorney, and Charles A. Watt, Deputy City Attorney, for appellant.
    
      John J. McKenna, for appellee.
    Certiorari to the industrial accident board. On October 1, 1913, David Vereeke was killed while in the employ of the city of Grand. Rapids. On the 5th day of March, 1914, his mother, claimant herein, entered into a stipulation with the city touching the amount earned by her son and the amount contributed to her. Based upon this stipulation the industrial accident board awarded claimant the sum of $6 a week for a period of 300 weeks. She removed the case to this court for review where it was affirmed. Vereeke v. City of Grand Rapids, 184 Mich. 474. In the meantime a petition had been filed in the probate court by Cornelius Vereeke, father of David, asking for the appointment of himself as the administrator of' his son’s estate. Such appointment was opposed by Kate Vereeke, claimant herein, and as a result one Frank D. McKay was appointed as such administrator. Said McKay entered into a written contract with the attorneys of Cornelius Vereeke and with the attorneys of Kate Vereeke by the terms of which they were to bring a suit at law against the Grand Rapids-Muskegon Power Co. under the survival act for the purpose of recovering damages on account of the alleged negligent killing of David Vereeke. By said contract it was provided that 50 per cent, of any recovery should be paid to the attorneys representing the administrator, one-half to the attorneys of Kate. This suit proceeded until October 5, 1915, when it was adjusted with the consent of the judge of probate for the sum of $2,050, which was on that date paid by the Grand Rapids-Muskegon Power Co. to the administrator. Of this sum the administrator paid to the attorneys as per his contract the sum of $1,000. Various other disbursements, including his own compensation, reduced the balance to $963.95. Both Cornelius and Kate laid claim to this sum. The probate court made an order assigning one-half to Cornelius and one-half to Kate. This order was affirmed in the circuit court on appeal and Kate Vereeke, claimant herein, received as her share thereof the sum of $481.92. While the matter was pending in the circuit court on appeal the city of Grand Rapids filed a petition in the circuit court for leave to intervene, but later failed to prosecute its claim to said fund or any part thereof. After the same had been paid to the claimant, Kate, the city of Grand Rapids filed a petition with the industrial accident board in which it prayed that it be authorized to cease payment to the said Kate Vereéke as in said order required and further that the city be allowed a credit on the amount awarded to said Kate Vereeke on the order heretofore made to the amount of one-half of said sum of $2,050 paid by the Grand RapidsMuskegon Power Co. to Vereeke’s administrator as aforesaid and by him paid to Kate Vereeke. This petition was answered by the claimant herein and a hearing had thereon before the industrial accident board. It was there made to appear that the city had paid to Kate Vereeke on the order of the board the sum of $1,230 and further facts substantially as above set forth were brought out. The board denied relief under the petition and its determination is now reviewed in this proceeding.
    
      
      See note in L. R. A. 1916A, 72.
    
   Brooke, J.

(after staling the facts)'. Section 15 of part 3 of the workmen’s compensation law (2 Comp. Laws 1915, § 5468) provides:

“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.”

Section 1 of part 6 of said law (2 Comp. Laws 1915, § 5488) reads 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, of 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.”

Under these two sections it is the claim of defendant city that the industrial accident board was in error in permitting claimant to retain the sum received by her in settlement of the suit at law against the Grand Rapids-Muskegon Power Co. and at the same time compel it, the defendant city, to continue payments to claimant as compensation under the act. This it is said amounts to double compensation to the claimant and should not be permitted. It is true that under section 15 of part 3 above quoted, the employee himself must make an election and cannot proceed against his employer for compensation and against a third party, the wrongdoer, for damages, and it is equally true that when the employer pays compensation he is empowered under the same section to recover such sums as he pays from the wrongdoer for his own benefit. Neither the section under, consideration, however, nor section 1 of part 6 (2 Comp. Laws 1915, § 5488) contains any limitation upon the rights of dependents except that, under section 1 of part 6, a dependent who accepts compensation from an employer releases to said employer all claims or demands at law, if any, arising from such injury. We think it cannot be contended that Kate Vereeke, by accepting compensation from the city of Grand Rapids, thereby released the Grand Rapids-Muskegon Power Co., the alleged wrongdoer, from liability in an action for the benefit of heirs at law or creditors of David Vereeke. By making a claim for compensation against the employer, the defendant city, she clothed that employer under the terms of section '15, part 3 (2 Comp. Laws 1915, § 5468), with a right of action against the wrongdoer. Had that right of action been prosecuted by the city recovery thereupon would certainly have been taken into consideration in awarding damages in a suit instituted by the administrator of the estate against the alleged wrongdoer. Having failed to protect its rights in the manner pointed out by the statute we are of opinion that the appellant city cannot now by petition to the industrial accident board have credited upon the award against it any sums received by Kate Vereeke as a result of the suit against the power company.

Judgment must be affirmed.

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