DeNnis v. Sinclair Lumber & Fuel Co.

• Decision Date: 03 April 1928
• Docket Number: No. 37.,37.
• Citation: 242 Mich. 89,218 N.W. 781
• Court: Michigan Supreme Court
• Parties: DENNIS v. SINCLAIR LUMBER & FUEL CO. et al.

242 Mich. 89

218 N.W. 781

DENNIS

v.SINCLAIR LUMBER & FUEL CO. et al.

No. 37.

Supreme Court of Michigan.

April 3, 1928.

Certiorari to Department of Labor and Industry.

Proceeding under the Workmen's Compensation Law by Nellie Dennis for compensation for the death of her husband, John Dennis, opposed by the Sinclair Lumber & Fuel Company, employer, and another. The Department of Labor and Industry made an award of compensation to the widow, and employer and another bring certrorari. Affirmed.

Argued before the Entire Bench. Dunham & Cholette, of Grand Rapids, for appellants.

Dilley, Souter & Dilley, of Grand Rapids, for appellee.

WIEST, J.

John Dennis owned an auto truck. The Sinclair Lumber & Fuel Company employed him and his truck steadily for sixteen weeks in delivering coal and building material at an agreed compensation per ton of coal and load of material. Mr. Dennis, in returning to the lumber yard from making a delivery, was killed at a railroad crossing. The Department of Labor and Industry held that Dennis was an employee of the lumber company and awarded compensation to his widow. Defendants denied liability, claiming Dennis was an independent contractor, was not an employee, and was not killed in an accident arising out of and in the course of employment. We issued our writ of certiorari on the application of defendants. Plaintiff filed two motions to dismiss the writ. Our disposition of the case renders decision of the motions unnecessary.

This is not a pioneer case. We have many times considered the principal point involved and, while not always in agreement, the majority opinions have fully settled the rule.

The Michigan Workmen's Compensation Statute (Comp. Laws 1915, §§ 5423-5459, as amended) applies to employer and employee in the sense of such relation at common law, and not at all to the relation of an independent contractor to a job or jobs. An abstract definition of what constitutes an independent contractor is useful in the test of whether the relation in a case is such or that of an employee, but is seldom decisive, for each case has its own facts and the facts call for applicable law.

Mr. Dennis was hired, with use of his truck, to deliver coal in retail quantities to customers of the lumber and fuel company. His every act was under direction and control of the company. The coal for delivery was selected by the company, weighed under its supervision, billed by the company, and delivered in each instance under its immediate direction, and, if not paid for before or at delivery, was brought back, and, if paid for on delivery, the money was brought to the company. The same was true of building material. Mr. Dennis worked steadily for the company for sixteen weeks and was paid at weekly intervals an average of about $42. At the time he was injured he was returning to the yard from making a delivery of building material. Mr. Dennis was in the course of his employment in returning to the place of his employer, even though not at the time of the accident pursuing the most direct route; there being some evidence showing road conditions justifying his course and nothing to show he was about any private affair.

An apt case illustrative of the common-law distinction between an independent contractor and an employee, under circumstances similar to those in the case at bar, is Waters v. Pioneer Fuel Co., 52 Minn....