Chester v. World Football League

• Decision Date: 04 May 1977
• Docket Number: Docket No. 27584
• Citation: 255 N.W.2d 643,75 Mich.App. 455
• Parties: Albert S. CHESTER and Ardis Chester, his wife, Plaintiffs-Appellants, v. WORLD FOOTBALL LEAGUE, a Foreign Corporation, Detroit Wheels, Inc., a Michigan Corporation, and Joseph (Bubba) Wyche, Jr., jointly and severally, Defendants- Appellees. 75 Mich.App. 455, 255 N.W.2d 643
• Court: Court of Appeal of Michigan — District of US

Page 643

255 N.W.2d 643

Albert S. CHESTER and Ardis Chester, his wife Plaintiffs-Appellants, v. WORLD FOOTBALL LEAGUE, a Foreign Corporation, Detroit Wheels, Inc., a Michigan Corporation, and Joseph (Bubba) Wyche, Jr., jointly and severally Defendants- Appellees.

Docket No. 27584.

75 Mich.App. 455, 255 N.W.2d 643

Court of Appeals of Michigan.

May 4, 1977.

Released for Publication July 20, 1977.

[75 MICHAPP 457] Marston & Marston, P. C., by Michael V. Marston, Detroit, for plaintiffs-appellants.

Robert E. Eggenberger, Detroit, for World Football and Wheels.

James N. Martin, Detroit, W. Kent Clarke, Jr., Southfield, for Wyche.

Before MAHER, V. J. BRENNAN and KAUFMAN, JJ.

KAUFMAN, Judge.

While we concur in the results reached in Judge Brennan's opinion on the propriety of the summary judgments granted to defendants Wyche and Wheels, we must respectfully dissent from his disposition regarding the defendant WFL. Our reasons for doing so will be outlined below.

Plaintiffs' second amended complaint against the WFL asserted two separate theories of recovery. First, plaintiffs contended that the WFL was vicariously liable for Wyche's battery under the doctrine of respondeat superior. The second theory of liability articulated by plaintiff was that the WFL was negligent, among other reasons, in keeping [75 MICHAPP 458] Wyche, a man purportedly of known violent propensities, within the WFL organization, provoking Wyche to violence by failing to act to satisfy his grievances and failing to act to prevent those grievances from arising.

As has been noted by Judge Brennan, both of these theories were disposed of by way of summary judgment. However, it is unclear from the record what was the exact basis of the trial judge's reasoning. Since this is so, we will frame what we perceive to be the relevant inquiries on appeal: First, if there were undisputed facts below showing that Wyche did not act within any agency relationship with the WFL, summary judgment was warranted as to the first theory of recovery. Secondly, if the undisputed facts below show that Chester was an employee of the WFL, summary judgment was appropriate on both theories and the trial judge should be affirmed in toto. We will discuss each issue separately.

Plaintiff relies on the fact that the Wheels had become insolvent and that the WFL had taken over the payroll to establish that Wyche acted as an agent for the WFL. In his brief, plaintiff asserts that the WFL had the right to hire or fire Wyche, "or as it ultimately did move him to another franchise", purportedly relying on Wyche's interrogatories. We have examined these interrogatories and we find no support for the statement regarding the WFL assigning his contract.

The proper test to determine an agency relationship, for purposes of respondeat superior liability, is the right to control. Arnett v. Hayes Wheel Co., 201 Mich. 67, 166 N.W. 957 (1918), Birou v. Thompson-Brown Co., 67 Mich.App. 502, 507, 241 N.W.2d 265 (1976), lv. den. 397 Mich. 808 (1976). Examining the facts under the right-to-control test, there is [75 MICHAPP 459] clearly no agency between Wyche and the WFL. Wyche was under contract with the Wheels, not the WFL. Wyche was sent to see plaintiff to collect his money with permission of the Wheels, not the WFL. On the record before us, there is nothing to indicate that the WFL had the right to control Wyche. The only evidence adduced below of any relevance is that the WFL had voluntarily undertaken to meet the Wheels' payroll. In the instant case, this does not suffice to show that the WFL had the right to control Wyche; accordingly, summary judgment as to the first theory of liability was proper.

Plaintiffs' second theory, however, does not stand in the same position. In defendant WFL's brief, it is argued that Chester was an employee of the WFL. This view is premised upon the theory that if Wyche's salary was undertaken by the WFL, then Chester's salary was also taken over by the league. As we noted above, in the instant case the voluntary assumption of a salary obligation, by itself, does not meet the control test. Moreover, there is nothing in the record to indicate that Chester's salary was taken over by the league. In fact, it was never alleged below. We are now asked on appeal to infer this fact from the bankruptcy of the Wheels. We must decline this invitation.

As we previously noted, even were this true, the control test was not met. Furthermore, there is nothing in the record to indicate that the WFL had the right to control, hire or fire, or discipline Chester. Thus, there is nothing on the record to support the finding that Chester was an employee of the WFL. Accordingly, we reverse the summary judgment on plaintiffs' negligence theory.

MAHER, P. J., concurred.

[75 MICHAPP 460] V. J. BRENNAN, Judge, dissenting.

On September 27, 1974, plaintiffs Albert and Ardis Chester brought suit against defendants jointly and severally for injuries arising out of a dispute over wages between defendant Wyche and plaintiff Albert Chester while Chester was controller for defendant Detroit Wheels (hereafter Wheels). Defendant World Football League (hereafter League) was joined as alleged co-employer of defendant Wyche. Motion for summary judgment was filed by defendants and granted by Wayne County Circuit Judge Benjamin D. Burdick on January 30, 1976. He found the claim against Wyche and the Wheels was barred by the exclusive remedy provisions of the Workmen's Compensation Act. M.C.L.A. § 418.131; M.S.A. § 17.237(131), M.C.L.A. § 418.301; M.S.A. § 17.237(301), M.C.L.A. § 418.827; M.S.A. § 17.237(827). He found for the League on the same basis, or, alternatively, because Wyche acted outside the scope of any possible agency with the League. Plaintiffs appeal as of right.

The incident giving rise to this litigation occurred on September 20, 1974. Plaintiff had been employed as controller of the Wheels through Kelly Services, Inc. (hereafter Kelly). Part of the arrangement meant that the Wheels would pay Kelly and Kelly would then pay plaintiff. However, plaintiff's deposition indicated that Kelly maintained no control over his time, duties or conduct with the Wheels.

Plaintiff had been working for the Wheels since July, 1974. Prior to September 20, 1974, the Wheels became insolvent and unable to meet their payroll. Thereupon, the League seems to have agreed to pay Wyche's salary. The last paycheck Wyche received on September 20, 1974, came from the League.

[75 MICHAPP 461] On September 20, 1974, plaintiff was working at the offices of the Wheels. Wyche and some other football players entered and engaged plaintiff in discussion about back pay due the players. The conversation became heated and Wyche grabbed plaintiff by the arm, plaintiff claiming he was thereby injured.

On appeal, plaintiff attacks the legal propriety of granting summary judgment for each defendant. I will deal with each defendant separately. As my brothers Maher and Kaufman disagree with my position as to defendant League, I will address that matter on my own behalf only.

In reviewing summary judgment, the party opposing the motion is given the benefit of all doubt. Beck v. Delta Recreation Corp., 2 Mich.App. 518, 525, 140 N.W.2d 764 (1966). Where there are unresolved material issues of fact or the evidence is incomplete or in dispute, the case is not appropriate for summary judgment. Cloverlanes Bowl, Inc. v. Gordon, 46 Mich.App. 518, 526, 208 N.W.2d 598 (1973); Oliver v. St. Clair Metal Products Co., 45 Mich.App. 242, 244, 206 N.W.2d 444 (1973). However, where no material question of fact remains, a motion for summary judgment raises a question of law for the trial court. Ladner v. Vander Band, 376 Mich. 321, 325, 136 N.W.2d 916 (1965).

Plaintiff first contends that the trial court erred by granting summary judgment for defendant Wheels. Plaintiff maintains that he was not, as a matter of law, an employee of defendant Wheels on September 20, 1974, and so was not precluded from bringing suit against them by the exclusive remedy provisions of the Workmen's Compensation Act.

Viewing the facts most favorably to plaintiff, we must disagree. Under the act, an employee is [75 MICHAPP 462] entitled to compensation if he receives a personal injury arising out of and in the course of his employment by an employer covered by the act. In this case, there is no dispute that Chester was injured in the course of his employment or that the Wheels were an employer covered by the act. What we must decide is the legal question of whether plaintiff was an employee of the Wheels within the meaning of the act. Higgins v. Monroe Evening News, 70 Mich.App. 407, 412, 245 N.W.2d 769 (1976).

The device used in Michigan to determine the existence of an employment relationship is the "economic reality" test. Cronk v. Chevrolet Local 659, 32 Mich.App. 394, 399, 189 N.W.2d 16 (1971). Generally, four factors are isolated: control, payment of wages, the right to hire and fire, and the right to discipline. Cronk, supra, at 399, 189 N.W.2d 16. See McKissic v. Bodine, 42 Mich.App. 203, 208-209, 201 N.W.2d 333 (1972). Applying these factors to this case, we believe plaintiff was an employee of the Wheels.

Further, we discern no distinction between the present matter and another recent decision of this Court. Renfroe v. Higgins Rack Coating & Manufacturing Co., Inc., 17 Mich.App. 259, 265, 169 N.W.2d 326 (1969). In Renfroe, plaintiff was dispatched by a labor broker on a day-to-day basis to work under the direction of a customer. After having worked on daily assignments for two or three weeks for one customer, plaintiff was injured while operating a punch press. Plaintiff recovered an award from the labor broker's workmen's compensation carrier, then sought additional recovery from the customer as a third-party tortfeasor.

The Court applied the economic reality test and found that plaintiff was a dual employee of the [75 MICHAPP...