Gutierrez v. Glaser Crandell Co.

• Decision Date: 21 December 1972
• Docket Number: No. 9,A,9
• Citation: 202 N.W.2d 786,388 Mich. 654
• Parties: Mary GUTIERREZ and Frank Gallegos, Plaintiffs-Appellants, v. GLASER CRANDELL COMPANY, Defendant-Appellee. * pril Term 1972.
• Court: Michigan Supreme Court

Page 786

202 N.W.2d 786

388 Mich. 654

Mary GUTIERREZ and Frank Gallegos, Plaintiffs-Appellants, v. GLASER CRANDELL COMPANY, Defendant-Appellee. ^*

No. 9, April Term 1972.

Supreme Court of Michigan.

Dec. 21, 1972.

Marcus, McCroskey, Libner, Reamon & Williams by J. Walter Brock, Muskegon, for plaintiffs-appellants.

Smith, Haughey, Rice, Roegge & Gould, by Thomas R. Tasker, Grand Rapids, for defendants-appellees.

Michigan Legal Services Assistance Program by Alan W. Houseman, Detroit, amicus curiae.

Before the Entire Bench.

ADAMS, Justice.

I agree with Justice T. G. Kavanagh that the provisions of section 115(d) of 1969 P.A. 317 (M.C.L.A. § 418.115(d); M.S.A. § 17.237(115)(d)), violate plaintiffs' rights to equal protection provided for in the constitutions of the United States and the State of Michigan. However, I arrive at this conclusion by a somewhat different route. Certain factual stipulations were entered into at the workmen's compensation hearing before Referee Johnson on February 16, 1970. They constitute the facts for consideration and determination of the questions involved in this case.

It was stipulated that injuries to plaintiffs occurred while they were working for Glaser Crandell, a packing company; that they were migrant workers; that they were on premises leased by Glaser Crandell at the time they were injured; the number of hours worked by plaintiffs for Glaser Crandell; the dates thereof and the dates of injury; that medical benefits were paid under a voluntary arrangement but no weekly disability benefits were paid. The facts as to plaintiffs' injuries and whether or not the injuries arose out of or during the course of employment were not determined.

There are no facts In this record from which I can conclude that the classification established by the exceptions contained in the Michigan Workmen's Compensation Act--'seasonal agricultural workers--is largely composed of Chicanos, Blacks and American Indians.' Nor is there in this record a basis for a finding that: 'Seasonal agricultural workers comprise one of the poorest segments of our society. The majority of these workers have earnings which are below the poverty level.' All of these 'facts' may be true but they are not facts of which this Court, at this stage in the proceedings, can properly take judicial notice. No effort was made to place these 'facts' in the record by requesting that the Hearing Referee take judicial notice of them or by some other proof. No opportunity was afforded defendant to except to or controvert the taking of judicial notice of these 'facts.' To do so new solely on the basis of ascertains contained in briefs would be improper since these 'facts' are not of such certainty as to permit taking judicial notice of them for the first time in an appellate court. See Winekoff v. Pospisil, 384 Mich. 260, 268--269, 181 N.W.2d 897 (1970).

Our examination must be confined to the Workmen's Compensation Act of 1969 (1969 P.A. 317). Section 111 (M.C.L.A. § 418.111; M.S.A. § 17.237(111)) has two classifications of employers--public and private and a single classification of employees--'every employee.' It reads:

'Every employer, public and private, and every employee, unless herein otherwise specifically provided, shall be subject to the provisions of this act and shall be bound thereby.' (Emphasis added.)

Section 115 of the act (M.C.L.A. § 418.115; M.S.A. § 17.237(115)) is quoted in full in Justice Brennan's opinion. It has three classifications of employers--all private employers, all public employers, and all agricultural employers.

Section 151 (M.C.L.A. § 418.151; M.S.A. § 17.237(151)), states:

(1) The following shall constitute employers subject to the provisions of this act:

'(a) The state and each county, city, township, incorporated village and school district therein and each incorporated public board or public commission in this state authorized by law to hold property and to sue or be sued generally.

'(b) Every person, firm and private corporation, including any public service corporation, who has any person in service under any contract of hire, express or implied, oral or written.' (Emphasis added.)

From the above sections, it can readily be seen that the scheme for workmen's compensation has radically changed since the enactment of the first Michigan Workmen's Compensation Act (1912 P.A. (1st Ex.Sess.) 10). Then the act was largely an optional one both as to employers and employees. Now the act purports to cover the entire field of employment in both the private and public sectors.

Agricultural employers are dealt with in section 115(d) and (e), M.C.L.A. § 418.115; M.S.A. § 17.237(115). Sections 115(d) and and (e) (all agricultural employers), parallel sections 115(a) and (b) (all private employers). The sections, with Underlining added for emphasis, are set forth in two columns below for ease in comparing the difference in treatment.

Section 115(a)

'All private employers, other than agricultural employers, Who regularly employ 3 or more employees at 1 time.'

Section 115(b)

'All private employers, other than agricultural employers, Who regularly employ less than 3 employees if at least 1 of them has been regularly employed by that same employer for 35 or more hours per week for 13 weeks or longer during the preceding 52 weeks.'

Section 115(d)

'All agricultural employers of 3 or more regular employees paid hourly wages or salaries, and Not paid on a piecework basis, who are employed 35 or more hours per week by that same employer for 13 or more consecutive weeks during the preceding 52 weeks. Coverage shall apply only to such regularly employed employees. The average weekly wage for such an employee shall be deemed to be the weeks worked in agricultural employment divided into the total wages which the employee has earned from all agricultural occupations during the 12 calendar months immediately preceding the injury, and No other definition pertaining to average weekly wage shall be applicable.'

Section 115(e)

'All agricultural employers of 1 or more employees who are employed 35 or more hours per week by that same employer for 5 or more consecutive weeks shall provide for such employees, in accordance with rules established by the director, medical and hospital coverage as set forth in section 315 for all personal injuries arising out of and in the course of employment suffered by such employees not otherwise covered by this act. The provision of such medical and hospital coverage shall not affect any rights of recovery that an employee would otherwise have against an agricultural employer and such right of recovery shall be subject to any defense the agricultural employer might otherwise have. Section 141 shall not apply to cases, other than medical and hospital coverages provided herein, arising under this subdivision nor shall it apply to actions brought against an agricultural employer who is not voluntarily or otherwise subject to this act. No person shall be considered an employee of an agricultural employer if the person is a spouse, child or other member of the employer's family, as defined in subdivision (b) of section 353 residing in the home or on the premises of the agricultural employer. 'All other agricultural employers not included in subdivisions (d) and (e) shall be exempt from the provisions of this act.'

Section 155(1) of the act (M.C.L.A. § 418.155; M.S.A. § 17.237(155)), defines an 'agricultural employer.' It reads:

'(1) An agricultural employer means one who hires A person performing services:

'(a) On a farm, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, bees, poultry and fur-bearing animals and wildlife.

'(b) In the employ of the owner or tenant or other operator of a farm, in connection with the operation, management, conservation, improvement or maintenance of such farm and its tools and equipment or in salvaging timber or clearing land of brush and other debris left by a hurricane, if the major part of such service is performed on a farm.

'(c) In connection with the production or harvesting of maple syrup or maple sugar or any commodity defined as an agricultural commodity or in connection with the raising or harvesting of mushrooms or in connection with the hatching of poultry or in connection with the operation or maintenance of ditches, canals, reservoirs or waterways used exclusively for supplying and storing water for farming purposes.

'(d) In handling, planting, drying, packing, packaging, processing, freezing, grading, storing or delivering to storage or to market or to a carrier for transportation to market, any agricultural or horticultural commodity but only if such service is performed as an incident to ordinary farming operations or in the case of fruits and vegetables as an incident to the preparation of such fruits or vegetables for market. The provisions of this subdivision shall not be deemed to be applicable with respect to service performed in connection with commercial canning or commercial freezing or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption.

'(2) As used in this section, Farm includes stock, dairy, poultry, fruit, furbearing animals and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities and orchards.' (Emphasis added.)

In Fox v. Employment Security Commission, 379 Mich. 579, 589, 153 N.W.2d 644, 648 (1967), it was said:

"'Legislation which, in carrying out a public purpose for the common good, is limited by reasonable and justifiable differentiation to a distinct type or class of persons is not for that reason unconstitutional, because class legislation,...