Janice v. Hondzinski

• Decision Date: 18 May 1989
• Docket Number: Docket No. 103992
• Citation: 176 Mich.App. 49,439 N.W.2d 276
• Parties: Peter JANICE and Maria Janice, Plaintiffs/Cross-Defendants Appellants, v. John R. HONDZINSKI and Helen Hondzinski, Defendants/Cross-Plaintiffs, and Heritage Newspapers, d/b/a News Herald, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 276

439 N.W.2d 276

176 Mich.App. 49

Peter JANICE and Maria Janice, Plaintiffs/Cross-Defendants Appellants, v. John R. HONDZINSKI and Helen Hondzinski, Defendants/Cross-Plaintiffs, and Heritage Newspapers, d/b/a News Herald, Defendant-Appellee.

Docket No. 103992.

Court of Appeals of Michigan.

Submitted Jan. 11, 1989.

Decided March 20, 1989.

Released for Publication May 18, 1989.

Sommers, Schwartz, Silver & Schwartz, P.C. by Lionel J. Postic and Charles R. Ash, III, Southfield, for plaintiffs/cross-defendants appellants.

Cummings, McClorey, Davis & Acho, P.C. by Richard H. Winslow and Marcia L. Howe, Livonia, for defendants/cross-plaintiffs.

Before MAHER, P.J., and CYNAR and GRIFFIN, JJ.

GRIFFIN, Judge.

Plaintiffs Peter and Maria Janice appeal as of right from a lower court order granting summary disposition in favor of defendant Heritage Newspapers, doing business as News Herald. We affirm.

I

One day each week since December, 1978, defendant John Hondzinski would deliver newspapers for the weekly newspaper, News Herald. On May 28, 1986, while driving in his own unmarked vehicle and in the process of his weekly deliveries, Hondzinski was involved in a motor vehicle accident with plaintiff Peter Janice. The accident occurred as Hondzinski drove out of a private driveway and attempted to turn left onto a thoroughfare. Plaintiffs' first amended complaint alleges negligence against Hondzinski in the operation of his motor vehicle. Primarily, it is asserted that Hondzinski failed to yield the right-of-way to the plaintiffs' oncoming vehicle.

Plaintiffs' negligence action seeks recovery of personal injuries and damages by Peter Janice and loss of consortium by his wife, Maria Janice. Count I of plaintiffs' complaint (not at issue in the instant appeal) alleges negligence by Hondzinski in the operation of his motor vehicle; Count II: vicarious liability against defendant News Herald for the negligence of its alleged employee Hondzinski; and Count III: negligent hiring of Hondzinski by defendant News Herald.

The contract between the News Herald and Hondzinski required defendant News Herald to make available to Hondzinski an agreed-upon number of newspapers as soon as practicable after publication. Hondzinski promised to pick up the newspapers and promptly deliver them to newsstands, carriers, persons, and places designated by the News Herald. The means and method of transportation and delivery of the newspaper were within the discretion and control of Hondzinski. He had the full right to determine the route or routes to be taken. Hondzinski was permitted to distribute other periodicals, advertisements, or commodities, or to engage in other business activities so long as he did not place materials in the newspapers. He was to use his own transportation for the deliveries and the News Herald did not make any payments for repairs, expenses, or mileage. It was Hondzinski's responsibility to provide a substitute if prevented by illness or other causes from making the distribution or deliveries, and Hondzinski was to maintain the exclusive control of and responsibility for any substitute.

The trial court granted defendant News Herald's motion for summary disposition as to Count II under MCR 2.116(C)(10), ruling that plaintiffs had failed to document sufficient facts to establish a genuine issue of material fact as to an employer-employee relationship between defendant News Herald and Hondzinski.

Subsequently, the trial court also dismissed Count III under MCR 2.116(C)(8) and (10). The court held that defendant News Herald did not have a duty to inquire into the background of its contract drivers and that, even if such a duty existed, defendant News Herald neither breached a duty by hiring Hondzinski nor contributed to the cause of the accident.

II

A motion for summary disposition under MCR 2.116(C)(10) tests the factual basis for a claim. A party defending against a motion brought under MCR 2.116(C)(10) may not rest upon his or her pleadings alone but must support allegations with factual documentation:

"When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial." MCR 2.116(G)(4).

Plaintiffs argue that a genuine issue of material fact existed as to whether Hondzinski was an employee of the News Herald and therefore the trial court erred in dismissing Count II. We disagree.

Generally, one who employs an independent contractor is not vicariously liable for the contractor's negligence. Hartford Fire Ins. Co. v. Walter Kidde & Co. Inc., 120 Mich.App. 283, 294, 328 N.W.2d 29 (1982). The rationale for this rule is that an independent contractor is not subject to the control of the employer, and therefore the employer should not be held vicariously liable for actions outside its control. Id. See also Nichol v. Billot, 406 Mich. 284, 296, 279 N.W.2d 761 (1979). The test generally applied to determine whether a newspaper carrier is an employee or an independent contractor is one of control. Sliter v. Cobb, 388 Mich. 202, 205-206, 200 N.W.2d 67 (1972). See also Anno: Newspaper Boy or Other News Carrier As Independent Contractor or Employee for Purposes of Respondeat Superior, 55 ALR3d 1216 (1974).

There are several indicia that the carrier is an independent contractor rather than an employee of the publisher: if the carrier purchased his route from another carrier rather than the publisher; if the carrier is referred to as an "independent contractor" in the contract with the publisher; if the carrier is not included in any of the benefit plans; and if the carrier trains his successor. Other important factors for this determination include: whether the carrier hired his own substitutes; whether the company rules or suggestions had to be followed; and whether the carrier could deliver other items as well as the publisher's newspaper. 55 ALR3d, Sec. 2, pp 1219-1220.

Michigan courts have followed these general principles to determine the relationship between carrier and publisher. This precise issue has been before the Michigan courts on two occasions. In Gall v. Detroit Journal Co. 191 Mich. 405, 158 N.W. 36 (1916), the plaintiff was injured when struck by an automobile driven by a carrier delivering papers for a defendant publisher. The contract between the carrier and publisher was terminable at the will of either party and provided that the carrier would deliver and distribute the newspapers at such places, along such routes, and on such schedules as designated by the publisher. The means and methods of such delivery were under the exclusive control of the carrier. In Gall the Supreme Court held that since the publisher had control only over the final result and the means of accomplishing the task was within the carrier's discretion, the carrier was an independent contractor rather than an employee. Gall, p. 409, 158 N.W. 36.

In Sliter v. Cobb, supra, a plaintiff was also injured in a motor vehicle accident with a carrier delivering newspapers. The Court found that the following factors were indicative of an employer-employee relationship between the carrier and the publisher: the route was owned by the publisher and leased to the carrier (whereas in Gall, the carrier owned the route and could sell it to another party); the carrier was forbidden from delivering any other publications on the route; the publisher directed the manner in which the papers were to be rolled, banded, and deposited; the carrier was required to comply with the publisher's billing procedure, credit policies, and bookkeeping methods; the carrier could not terminate delivery to customers, except for nonpayment, without the permission of the publisher; and the carrier received a mileage allowance for servicing the route.

In the present case, the following facts are undisputed: the News Herald did not reserve the right to cancel the contract at will; Hondzinski was not prohibited from delivering other publications; and Hondzinski was not required to follow the...