Glenn v. McDonald Dairy Co.

• Decision Date: 05 March 1935
• Docket Number: No. 70.,70.
• Citation: 270 Mich. 346,259 N.W. 288
• Parties: GLENN v. McDONALD DAIRY CO. et al.
• Court: Michigan Supreme Court

270 Mich. 346

259 N.W. 288

GLENN

v.McDONALD DAIRY CO. et al.

No. 70.

Supreme Court of Michigan.

March 5, 1935.

Appeal from Department of Labor and Industry.

Proceeding by Eda Glenn to recover compensation under the Workmen's Compensation Act for the death of Charles Glenn, employee, opposed by the McDonald Dairy Company, employer, and the General Accident Assurance Corporation, insurance carrier. From an order of the Department of Labor and Industry reversing the deputy commissioner's award of compensation, claimant appeals in the nature of certiorari.

Affirmed.

Argued before the Entire Bench.

Charles H. Goggin, of Alma, Seth Q. Pulver, of Owosso, and William M. Smith, of St. Johns, for appellant.

Kerr, Lacey & Scroggie, of Detroit, for appellees.

BUSHNELL, Justice.

Claimant is the widow of Charles Glenn, a carpenter, who died as the result of a fall while working on the roof of defendant's barn. Defendant denied liability, claiming the deceased was an independent contractor and not an employee within the meaning of the Workmen's Compensation Act (Comp. Laws 1929, § 8407 et seq.). The deputy commissioner made a full award to claimant. The board, however, said on appeal: ‘We do not say that he was an independent contractor or that he was an employee but we do say that the burden of proof resting on the plaintiff to prove he was an employee has not been met.’

The board therefore reversed the award of the deputy.

We cannot commend the manner in which this case was tried. There is no reason why the facts could not have been clearly presented and readily agreed upon by counsel in their briefs, but, since they disagree, we take from the testimony sufficient for the purposes of this opinion.

While Glenn and Bush were repairing a porch at the home of William McDonald, vice president of defendant company, a fire damaged a blacksmith shop and barn in the rear of the dairy plant. Bush testified: ‘McDonald told Mr. Glenn that he could go over and fix the blacksmith shop and maybe the barn. Mr. Glenn asked Mr. McDonald if he should take me; he said ‘I don't care.”

Both men were paid by the hour for shingling the roof, re-siding a part and repairing the cornice of the blacksmith shop. They then measured the barn, and Glenn ordered the material needed for the job, which arrived on the day of the accident and was afterwards charged to, and paid for by, defendant company. Later the dairy company secured a permit to repair, but neither man at any time was licensed by the city as a contractor as required by ordinance. Glenn and Bush erected a scaffold, removed the damaged shingles, put a ‘toe-hold’ on the roof, and, while they were laying new shingles, the toe hold pulled loose. Bush caught himself on the scaffold, but Glenn fell to the ground and died several hours later.

The only other testimony as to the nature of the employment was that of McDonald, who, over plaintiff's objection as to testimony equally within the knowledge of the deceased (Comp. Laws 1929, § 14219), said that the barn job was awarded to Glenn on the basis of his bid of $244. The opinion of the board says: ‘This commission rejects the testimony of McDonald because it is clear that it is a violation of the opposite party rule,’ etc.

This holding is in accord with Morse v. Port Huron & Detroit R. Co., 251 Mich. 309, 232 N. W 369, citing Hanna v. Michigan Steel Castings Co., 204 Mich. 139, 170 N. W. 6, and others.

It is fundamental that the relation of employer and employee must be either admitted or proved. The department may draw inferences from the facts and circumstances. We may also determine whether there is any competent evidence to support the findings and whether the inferences drawn are properly deducible from the testimony. Johns v. Wisconsin Land & Lumber Co., 268 Mich. 675, 256 N. W. 592. The board held that claimant had not produced sufficient proof of the relationship between decedent and defendant company. To this appellees argue that there is evidence in the record showing, or tending to show, that decedent at the time of his injury jury was an employee of defendant company, and that, since there is no claim that he was a trespasser and no competent proof that he was an independent contractor, a prima facie case of employment has been made. In Paton v. Port Huron Engine & Thresher Co., 214 Mich. 130, 133, 182 N. W. 639, we held: ‘If we are to determine when the plaintiff has met the burden of proof we must try the facts. But we have held again and again that the board is the trier of the facts.’

We do not weigh the evidence on appeals from the Department of Labor and Industry.

‘In accordance with section 8451, Comp. Laws 1929, we must adopt the findings of fact of the Department of Labor and Industry as conclusive, unless there is no competent evidence to sustain such findings. Meyers v. Railroad Co., 199 Mich. 134, 165 N. W. 703;Luyk v. Hertel, 242 Mich. 445, 219 N. W. 721;Solomon v. Railway, 221 Mich. 599, 192 N. W. 568. We may, however, determine whether there is any competent evidence to support such findings, or whether the inferences drawn are properly deducible from the testimony. Ginsberg v. Burroughs Adding Machine Co., 204 Mich. 130, 170 N. W. 15;Kirkley v. General Baking Co., 217 Mich. 307, 186 N. W. 482.’ Bjorkstrand v. Klagstad, 262 Mich. 186, 247 N. W. 149, 150.

In Ginsberg v. Burroughs Adding Machine Co., 204 Mich....