Eberly v. Sanders Lumber Co.
| Decision Date | 14 December 1937 |
| Docket Number | Oct. Term.,No. 59,59 |
| Citation | 276 N.W. 462,282 Mich. 315 |
| Court | Michigan Supreme Court |
| Parties | EBERLY et al. v. SANDERS LUMBER CO. et al. |
OPINION TEXT STARTS HERE
Proceeding under the Workmen's Compensation Act by Olga Eberly, widow, and Mildred Marie Eberly and others, minors, claimants, for the death of Ernest Eberly, their husband and father, opposed by the Sanders Lumber Company, employer, and the United States Fidelity & Guaranty Company, insurance carrier. From an award for plaintiffs, the employer and insurance carrier appeal.
Award vacated.
Appeal from Department of Labor and Industry; Frank F. Ford, chairman.
Argued before the Entire Bench.
Stearns, Kleinstuck & Stapleton, of Kalamazoo, and Payne & Payne, of Detroit for appellants.
White & White, of Niles, and Hammerschmidt & Johnson, of South Bend, Ind., for appellees.
Olga Eberly is the widow and the other three plaintiffs are minor children of Ernest Eberly, deceased. In 1935 Mr. Eberly was engaged by the defendant Sanders Lumber Company to cut logs for it from a rather large piece of timber in Cass county, known as the north tract of the Runkle woods. On the 19th day of October, as he finished cutting a tree, a limb struck him on the head and caused his death. Plaintiffs, as dependents, filed a petition for compensation and received an award of $18 per week for 300 weeks, and $200 burial expenses. The defendant employer and the carrier of the risk have appealed.
One of the claims presented by appellants is that in cutting this timber Mr. Eberly was acting as an independent contractor, not as an employee, and therefore the award of compensation was erroneously made. If appellants are correct in this position, it is decisive of this appeal. It appears from this record that from time to time for substantially nine years Mr. Eberly had been engaged in cutting logs for the Sanders Lumber Company, sometimes cutting a few trees which were purchased out of a given stand of timber, and at other times cutting all the trees which were large enough to come within certain requirements standing in a large tract of timber. The testimony does not disclose the terms of the agreement under which Mr. Eberly engaged to cut the logs on former occasions. Nor is the record as full and as satisfactory as might be wished as to the terms of the agreement existing between these parties at the time Mr. Eberly was working on the Runkle tract. This is due in part to the exclusion of testimony equally within the knowledge of deceased and the representative of the lumber company who employed him. However, the following pertinent facts appear from the record: There was a separate and definite contract with deceased for cutting trees which were at least 14 inches in diameter, 14 inches from the ground then standing on this north tract of the Runkle woods. The cut of the logs was to be as long as the timber would permit and sufficient in quantity to keep three trucks provided by the defendant lumber company busy in hauling the logs. Mr. Eberly was to be paid $2 per thousand log feet. The method of accomplishing the work was clearly left for Mr. Eberly's determination. He was not required to do the work himself. In fact, his son worked with him and shared with him equally in the net pay which he received for the work. Mr. Eberly also employed two other men to work on this job. He determined the extent to which he would employ these extra men and the amount he would pay them; but, apparently for convenience, the pay due these two extra men was made direct to them by checks from the lumber company, the amount of which was deducted from the total of $2 per thousand otherwise due to deceased. As to the employment of these extra men it is evident from the record it was necessitated by reason of the insistence of the defendant company that Eberly should progress with the work fast enough to keep the three hauling trucks busy. Other than this there appears to have been no control over the number of men, if any, that Eberly might employ to assist him; and the amount of their compensation was fixed by him. Further, except as was necessary to keep the trucks busy, the lumber company had no authority to interfere with the working hours of the men or the speed with which the work should progress. The tools used in this work were furnished and kept in repair by Mr. Eberly, the same being purchased by him from the lumber company.
The representative and officer of the lumber company who made this agreement with Mr....
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...contract; in Polka v. Lynch Timber Co., 227 Mich. 606, 199 N.W. 660, plaintiff hired whatever help he desired; in Eberly v. Sanders Lumber Co., 282 Mich. 315, 276 N.W. 462, plaintiff hired men to keep three hauling trucks busy and was not required to do the work himself. All of these circum......
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