Cline v. Byrne Doors, Inc., 48.

• Decision Date: 18 May 1949
• Docket Number: No. 48.,48.
• Citation: 324 Mich. 540,37 N.W.2d 630
• Parties: CLINE v. BYRNE DOORS, Inc., et al.
• Court: Michigan Supreme Court

324 Mich. 540

37 N.W.2d 630

CLINE

v.BYRNE DOORS, Inc., et al.

No. 48.

Supreme Court of Michigan.

May 18, 1949.

Appeal from Michigan Workmen's Compensation Commission in the Nature of Certiorari.

Act by Clyde R. Cline, claimant, opposed by Byrne Doors, Inc., employer, and the Michigan Mutual Liability Company. From an order of the Workmen's Compensation Commission granting compensation to claimant, the employer and insurer appeal.

Order affirmed and case remanded for further proceedings.Before the Entire Bench.

Russell J. Comer, Lincoln Park, and Floyd T. Schermerhorn, Detroit, for plaintiff and appellee.

L. J. Carey and Geo. J. Cooper, Detroit, for defendants and appellants.

BOYLES, Justice.

On leave granted, the defendants appeal from an order of the workmen's compensation commission granting compensation to the plaintiff.

Plaintiff was, at the time of his injury, and still is, a resident of this State. His employment by the defendant Byrne Doors, Inc., first began in 1943, but has not since been continuous. His work, conceded to be skilled employment, was as a foreman or erection superintendent on construction projects, installing equipment for the defendant company. His first job, in 1943, was at the municipal airport in Cleveland, Ohio, in connection with the building of a bomber plant. He worked there for the defendant company about six months. He next worked for the defendant company at the Ford bomber plant in this State, then in Lafayette, Indiana; Buffalo, New York; and Dayton, Ohio. In 1944 he was laid off for four or five months. In 1945 he received a letter from one Mr. Joyce, a superintendent of construction for the defendant Byrne Doors, Inc., who was then in Washington, D. C., offering him a job in Florida. Plaintiff's testimony at the hearing before the deputy is not controverted. He testified:

‘Q. * * * And you received that letter in Lincoln Park. A. Yes, at my home, and he was in Washington at that time and stated that he had that job. It was quite a complicated affair in Florida and-he had been offered it, rather, and he wouldn't take it unless I would assist him on the job, so I wrote him back at Miami, Florida-he gave me his address to write him-and told him that I would accept the job.

‘Q. You told him that you would accept the job. Who did you see in the David Stott building (in Detroit)? * * * A. I went into the office. Mr. Kemph, he is erection superintendent and Mr. Gartrell, assistant--

‘Q. (By Mr. Comer) (attorney for plaintiff): What date was that, witness? A. About March, 1945. I had taken the plans and (he) gave me money to go on and some little hand tools, incidental tools, electrical equipment, in my car to Florida, but I left my home and came to the David Stott building and picked up the money and blueprints, timekeeping paraphernalia, payrolls, weekly payrolls and left for Florida. I didn't go home from the David Stott building. I went straight to Florida. That was the latter part of March of '45.

‘Q. Who did you consult with at the David Stott building? A. Kemph and Johnny Gartrell.

‘Q. Who is he? A. He is assistant erection superintendent of Byrne Doors. That would be in charge of all the work that Byrne Doors had.

‘Q. What were the details of your conversation there with him? A. He just told me to go to Florida and go to work. * * *

‘Q. (By Mr. Comer): Had you received a pay check previous to the time you went to the David Stott building? * * * A. I was paid with a check the morning I left to go to Florida. * * *

‘Q. All right, up to the time you went to the David Stott building, before that date, did you receive any compensation from Byrne Doors? * * * A. No, I worked four days out on Epworth boulevard getting out the tools and equipment to do the job with and shipped them to Florida. I came into the David Stott building and got my check that same day that I left for Florida and $250 incidental expense money to pay my hotels, my meals, and to pay my own self my wages. I carried my own time up until the time that Mr. Joyce came and taken over. I paid myself out of the company money and mailed them a weekly statement and a daily progress report of what I was doing and how I was doing it, but I had the money in my pocket to pay myself. I just mailed them a statement of how much money I had taken out and how much money I still had.

* * *

‘The Commissioner: What agreement did you have--

* * *

‘A. I was just told to go to Florida. I didn't have any agreement. They just gave me the plans and the address and whom it was for and some incidental tools and equipment and $250, and said, ‘Get down to Florida,’ and I got right in my car and drove right to Florida * * *

‘Q. (By Mr. Comer): Who did you make those agreements with, Mr. Cline? A. With Mr. Gartrell.

‘Q. Where abouts? A. David Stott building.

‘Q. Did you discuss the question of wages with him? A. No.

‘Q. With whom did you determine that question? A. Cy Joyce.

‘Q. Where was he when you talked about that? A. That was by mail.

‘Q. By mail from where? A. Miami, Florida.

‘Q. From Miami. He was the superintendent of the company? * * * A. This was by mail. He wrote me from Washington, D. C., asking me if I would act as his assistant on the job. If I wouldn't act his assistant, he wouldn't accept the job, but if I would assist him in it, he would accept the job, and I wrote him to Miami that I would provided he would pay my expenses, and I believe that was a guaranty of $100 a week and if I worked hours over and beyond that at $2.07 1/2 wage scale, I was to get that, but guaranteed $100 flat whatever we did.

‘Q. (By Mr. Comer): When you worked for Byrne Doors previous to that occasion, how were you paid? By cash or check? A. By cash. * * *

‘Q. At all times? A. Oh, yes. That is the policy of the company. * * *

‘Q. With reference to your being hired by the Byrne Doors, Incorporated, were you in the State of Michigan at all times where these telephone conversations, letters and other conversations-A. Oh, yes, at the time I left for work, I always left from Michigan to go wherever they had work. They sent me over there. I was told to go to Buffalo by Johnny Gartrell and I was told to go to Lafayette, Indiana, by Mr. Kemph. I was told to go to Florida by Gartrell.

‘Q. All right. Now, then, after March of 1945, you left to go to Florida? A. Yes.

‘Q. What was the nature of your work? A. Well, building a door for-I don't know just what you would call it. I believe they call it a climatic hangar. It was a hangar they could heat up or freeze up, whichever way they wanted to. It operated from 75 below zero to 150 above.

‘Q. Where did you work in Florida? A. Eglin Field * * * Army air force proving ground.

‘Q. When you went down there what took place? A. I reported to Major Littlefield as a representative of Byrne Doors. There was no one else on the job at that time, and I discussed the plans of how we were to get started and they were very anxious that we get started. Didn't have any material on the job to get started with, so we started laying railroad track, I believe, a couple days after that.

‘Q. That was the first individual you contacted? A. Yes. I was there two days and Joyce came in and he was officially in charge of the job.

‘Q. In what respect was he officially in charge of the job? A. Superintendent. * * *

‘Q. From the date that you first appeared on that field and started to work there up until the time that you were injured, did you consult any other person in Florida concerning your employment? A. No. No. I talked to Mr. Kemph over the telephone from Detroit.

‘Q. Who is that? A. Erection superintendent.

‘Q. Of Byrne Doors? A. Yes, sir. He sent me to Brunswick, Georgia. At that time we had completely run out of material, he sent me to Brunswick. * * *

‘Q. (By Mr. Comer): Now, then, you continued working there at the field for Byrne Boors until the date of your injury? A. Well, I worked for Byrne Doors all the while. I didn't work for anyone else. I left there and went to Brunswick for two weeks and came back to the same job, Eglin Field, again, but I worked for Byrne Doors all the time.’

While he was working on the job in Florida, plaintiff's right leg was crushed and fractured by the fall of some steel. He was voluntarily paid weekly compensation benefits by the insurance carrier for the defendant Byrne Doors, Inc., in accordance with the Florida law, and was also paid additional medical, surgical and hospital care by the said insurance carrier under an order made by the Florida industrial commission, under the Florida statute law.

Subsequently plaintiff filed the petition in the instant matter, with the Michigan department of labor and industry, for compensation for disability arising out of said personal injury in Florida. As hereinbefore stated, the workmen's compensation commission entered an order granting compensation, from which the defendants appeal. Two questions are raised by appellants as grounds for reversal and for setting aside the award.

1. Was plaintiff employed under a contract of hire made in this state?

The statute, 2 Comp.Laws 1929, § 8458, Stat.Ann. § 17.193, under which the compensation commission assumed jurisdiction to make said award, is as follows:

‘The industrial accident board shall have jurisdiction over all controversies arising out of injuries suffered without the territorial limits of this state, in those cases where the injured employe is a resident of this state at the time of the injury, and the contract of hire was made in this state, and any such employe or his dependents shall be entitled to the compensation or death benefits provided by this act.’

Appellants claim that this provision of the act is not applicable because the contract of hire was not made in this State. Under the provisions in the Michigan statute on which plaintiff relies, his right to compensation depends on whether he was employed by virtue of a contract of hire made in this State.

Plaintiff was an...