Kendrick v. Graddis

• Decision Date: 03 May 1977
• Docket Number: Docket No. 27214
• Citation: 75 Mich.App. 383,255 N.W.2d 14
• Parties: Gerald KENDRICK, Plaintiff-Appellant, v. Marjorie GRADDIS, Defendant-Appellee. 75 Mich.App. 383, 255 N.W.2d 14
• Court: Court of Appeal of Michigan — District of US

Page 14

255 N.W.2d 14

Gerald KENDRICK, Plaintiff-Appellant, v. Marjorie GRADDIS, Defendant-Appellee.

Docket No. 27214.

75 Mich.App. 383, 255 N.W.2d 14

Court of Appeals of Michigan.

May 3, 1977.

Released for Publication June 28, 1977.

[75 MICHAPP 384] Greenberg & Walker by John W. Orile, Clarkston, for plaintiff-appellant.

R. Scott Mills, Detroit, for defendant-appellee.

Before D. E. HOLBROOK, Jr., P. J., and BRONSON and V. J. BRENNAN, JJ.

V. J. BRENNAN, Judge.

Plaintiff Gerald Kendrick brought this negligence action against defendant Marjorie Graddis alleging that he had contracted to perform exterior work on defendant's house and that defendant had agreed to provide plaintiff with a ladder, which had been modified by the addition of wooden extensions bolted to the aluminum frame, and which broke when plaintiff used it, causing plaintiff to fall and sustain serious injury as a result. Defendant answered, denying all of the allegations of negligence in plaintiff's complaint and raising certain affirmative defenses. Plaintiff was deposed and, on the strength of his deposition [75 MICHAPP 385] testimony, defendant prepared an affidavit in support of her motion for summary judgment reciting the events as plaintiff testified they had occurred, and requesting summary judgment pursuant to GCR 1963, 117.2(3), on the ground that there existed no genuine issue as to any material fact. The trial judge granted defendant's motion, ruling that,

"In reviewing the deposition from Mr. Kendrick, the court finds it clear that the defendant exercised no control over him. Thus, the master-servant relationship never arose and Mr. Kendrick was a mere independent contractor. The simple tool doctrine has no application in this case, and the court can find no real issue of fact."

On appeal, plaintiff first contends that the trial court erred in holding that, as a matter of law, plaintiff was not an employee, based only on plaintiff's deposition. Plaintiff argues that the question of whether one is an employee is always one of fact, or of fact and law, and that therefore the trial judge impermissibly resolved a question of fact unfavorably to plaintiff. Plaintiff bases this contention on his deposition testimony that defendant provided him with paint and a ladder, both of which factors tend to suggest that plaintiff was an employee rather than an independent contractor.

With the proposition that the question of whether one is an employee is generally one of fact, or of fact and law, we must agree. Rule v. Giuglio, 304 Mich. 73, 79, 7 N.W.2d 227 (1942); Stevenson v. Antrim Iron Co., 287 Mich. 418, 422-424, 283 N.W. 632 (1939); Tuttle v. Embury-Martin Lumber Co., 192 Mich. 385, 400, 158 N.W. 875 (1916). However, construing the pleadings and deposition [75 MICHAPP 386] most favorably to plaintiff, we still believe the evidence in this particular case speaks so strongly to finding plaintiff an independent contractor ¹ that no genuine issue of fact on this question remained.

For instance, plaintiff provided his own basic tools, including ladders. When forced to find a longer ladder than he had brought to the job that day, plaintiff was the party who approached defendant's neighbor for the ladder. Defendant's role was merely to ask the neighbor if plaintiff could borrow the ladder. Nothing in the record indicates defendant ever saw the ladder. Plaintiff himself was the one who actually went to the neighbor's house and secured the ladder. We do not find this situation equivalent to defendant's actually supplying plaintiff with a ladder.

Defendant did provide plaintiff with paint because the paint was already on hand. However, we find as well that the contract had a fixed price of $575, which tends to indicate an independent contractor relationship. Stratton v. Maine, 336 Mich 163, 167, 57 N.W.2d 480 (1953). Moreover, plaintiff was clearly in control of his work. He had a "partner", who was obviously no more under defendant's control than was plaintiff. We have no doubt that the only control defendant possessed over plaintiff's work was the result. Zoltowski v. [75 MICHAPP 387] Ternes Coal & Lumber Co., supra, 214 Mich. at 233, 183 N.W. 11; Utley v. Taylor & Gaskin, Inc., supra, 305 Mich. at 570, 9...