Acme Messenger Serv. Co. v. Mich. Unemployment Comp. Comm'n

• Decision Date: 11 October 1943
• Docket Number: No. 27.,27.
• Citation: 306 Mich. 704,11 N.W.2d 296
• Parties: ACME MESSENGER SERVICE CO. v. MICHIGAN UNEMPLOYMENT COMPENSATION COMMISSION.
• Court: Michigan Supreme Court

306 Mich. 704

11 N.W.2d 296

ACME MESSENGER SERVICE CO.

v.MICHIGAN UNEMPLOYMENT COMPENSATION COMMISSION.

No. 27.

Supreme Court of Michigan.

Oct. 11, 1943.

Action by the Acme Messenger Service Company against the Michigan Unemployment Compensation Commission. From an adverse judgment, defendant appeals.

Reversed and remanded for entry of an order in accordance with opinion.Appeal from Circuit Court, Wayne County; Vincent M. Brennan, judge.

Before the Entire Bench.

Herbert J. Rushton, Atty Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and Florence N. Clement, Asst. Atty. Gen., for appellant.

Allen H. Blondy and John P. Murphy, both of Detroit (Joseph J. Geraci, of Detroit, of counsel), for appellee.

BOYLES, Chief Justice.

The Michigan unemployment compensation commission appeals from a judgment entered in the Wayne county circuit court, adjudging that the plaintiff, Acme Messenger Service Company, is not to be held liable for unemployment assessments covering truck drivers and messengers who deliver messages and packages for the plaintiff.

The Acme Messenger Service Company is a Michigan corporation, with its principal place of business in Detroit. Since 1937, the company has been rendering messenger service, special delivery service and light trucking. There are about twelve individuals who make deliveries for the company. Four of these individuals work full time for the company, the others work part time depending upon the volume of business of the company. The relationship between the company and each of the men is the same, although four of the men signed a written contract and the others work under an oral arrangement. The men are compensated on a mileage and time basis, are on plaintiff's payroll, and are paid each week. Each man provides his own transportation (bicycle, automobile or light truck) and pays his own expenses of operation. Six of the men carry liability and property damage insurance to protect the company and themselves. The insurance premium is sometimes paid by the company and funds withheld from the driver to reimburse the company.

The company does not give detailed instructions to the men aside from where to pick up the packages or messages, and where to deliver them. The only requirement is that the delivery be made with dispatch. The men are not required to attend meetings and are not supervised by a foreman, but work directly under the president (general manager) of the company. The drivers await their turn to make a delivery. If a driver's work is unsatisfactory, he is not given any more work. The company keeps a time slip for each delivery. Complaints of customers are received by the company and the manager then speaks to the driver and finds out his excuse.

The delivery of parcels and packages is the regular course of business of the company. The men receive some of the assignments in the offices of the company, and some are given out by telephone. Apparently, the messengers report back to the company upon the completion of an assignment.

None of the drivers has his own place of business, nor is there any testimony to show that any of the individuals hold themselves out to the public as engaged in the messenger or delivery service. Some of the drivers also do work for other companies. For example, two of the men work for the New York Times on Saturdays; one man has a full-time job at night and works only two or three hours a day for the Acme Messenger Service Company. One of the men also delivers messages for the Postal Telegraph Company. Several of them had been employed by other messenger companies or to deliver newspapers prior to their connection with the plaintiff company. They quit their former jobs when they started to work for the plaintiff.

The main question presented for decision is the meaning of the term ‘employment’ as used in the Michigan unemployment act. The trial court applies the definition of independent contractor to the facts to ascertain the status of the services rendered by the messengers. The court construed the case of Bert Baker, Inc., v. Ryce, 301 Mich. 84, 3 N.W.2d 20, to hold that the unemployment act did not provide a test for the determination of the employment relationship different than that used at common law. The court held that the facts adduced did not show ‘control’ by the company over the messengers, that the men were ‘independent contractors,’ and that, therefore, they were not in ‘employment’ for the Acme Messenger Service Company.

The commission claims that in order to determine the ‘employment’ relationship under the unemployment act, the statutory test (Act No. 1, Pub.Acts 1936 [Ex.Sess.], as amended by Act No. 324, § 42, subd. 1 and subd. 6 [a], [b] and [c], Pub.Acts 1939) must be applied, rather than the common-law test of master and servant or the ‘independent contractor’ rule. (For subsequent amendments to the above act, see Act No. 364, Pub.Acts 1941, and Act No. 18, Pub.Acts 1942 [2d Ex.Sess.], Stat.Ann.1942 Cum.Supp. § 17.545.) The messenger company claims that the instant case is controlled by Bert Baker, Inc., v. Ryce, supra. In that case, an individual who sought to claim unemployment compensation was not on the payroll of the one claimed to be his employer, and the employer had no control or direction over the services performed by the claimant. It was held that the relation between the claimant and the one in whose employment he claimed to be was not ‘employment’ within the meaning of the act. The facts distinguish the case from the one now before us.

In approaching the question of law involved, we do not consider the wisdom or the policy of the legislature in the enactment. People v. Powell, 280 Mich. 699, 274 N.W. 372, 111 A.L.R. 721. The function of the court is to apply the fundamental rules of statutory construction and thereby seek to determine the legislative intent. If the language of the statute is plain and unambiguous, no interpretation is necessary. In re Chamberlain's Estate, 298 Mich. 278, 299 N.W. 82. If the unemployment compensation law plainly determines the status of the truck drivers and messengers involved in this case, as to whether they are ‘employed by,’ or ‘in the employment of’ the messenger company, no further research into the law is necessary. Neither the common-law rules as to the relation of master and servant, nor the ‘independent contractor’ rules as applied to the workmen's Compensation Law or the licensing of carriers of passengers or goods for hire, will be considered to provide the controlling test as to whether one is ‘in the employment of’ another, under the Unemployment Compensation Act. The statutory provisions in the act must be held to supply the test. But in case of ambiguity or uncertainty in the statute, the court will consider that the statute was enacted in contemplation of the established common-law rules of master and servant. Nor is there any persuasive reason, if the statutory definition is uncertain or ambiguous, why the court should ignore decisions that have settled the law as to independent contractors, under statutes of like import. Does the unemployment compensation statute provide a definite test by which the court may determine whether the individuals who deliver packages and messages for the plaintiff under the facts of this case are ‘in the employment’ of the plaintiff within the meaning of the act? We think it does.

As applied to this case, the test as to what constitutes employment within the meaning of the act is in section 42, as amended by Act No. 324, Pub.Acts 1939. The pertinent parts are as follows:

‘(1) Subject to the other provisions of this section ‘employment’ means service, including service in interstate commerce, performed for remuneration or under any contract of hire, written or oral, express or implied.

* * *

‘(6) Services performed by an individual for remuneration shall be deemed to be employment subject to this act unless and until it is shown to the satisfaction of the commission that:

‘(a) Such individual has been and will continue to be free...