McCormick v. Sears, Roebuck & Co.

• Decision Date: 01 June 1931
• Docket Number: No. 83.,83.
• Court: Michigan Supreme Court
• Parties: McCORMICK v. SEARS, ROEBUCK & CO.

254 Mich. 221

236 N.W. 785

McCORMICK

v.SEARS, ROEBUCK & CO.

No. 83.

Supreme Court of Michigan.

June 1, 1931.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Earl McComick against Sears, Roebuck & Co., employer. From an order of the Industrial Accident Board granting an award, defendant appeals.

Reversed.

Argued before the Entire Bench.

Carton, Gault & Parker, of Flint, for appellant.

D. G. F. Warner, of Lansing, for appellee.

McDONALD, J.

The plaintiff presented a claim to the Industrial Accident Board to recover compensation for accidental injuries sustained while in defendant's employ. Defendant denied liability on the ground that at the time of the accident plaintiff was not an employee but an independent contractor. From an award in favor of the plaintiff, the defendant has appealed.

The material facts are not in dispute. On February 20, 1930, the parties entered into a written contract wherein it was agreed that for a period of one year from date the plaintiff would accept any roofing job tendered to him by the defendant within thirty miles of the city hall in the city of Flint, Mich.; that he would perform all jobs in a workmanlike manner and in accordance with specifications contained in estimated sheets furnished by the defendant; that he would employ at his own expense all workmen engaged in and about the work, discharge them at will, and have complete supervision and control over them; that he would make good any defect in workmanship; that he would return to defendant all ladders, scaffolding, and equipment loaned to him for use in the work, and, in case of any damage thereto, allow the defendant to deduct the same from any money due to him; that on all jobs he would save the defendant harmless from demands for compensation, protect defendant against all liens, claims for damages, lawsuits, and claims of every nature arising out of the performance of the work; that defendant would furnish all material used on the job and pay to the plaintiff as compensation so much per square of the actual roofing.

On June 20, 1930, the plaintiff was accidentally injured while working on a roofing job taken by him in accordance with the terms of the contract.

The Industrial Accident Board was not pleased with this contract. It correctly characterized it as unfair to the plaintiff and as a studied attempt to avoid the provisions of the Workmen's Compensation Act (Comp. Laws 1929, § 8407 et seq.). Nevertheless, the plaintiff had a right to make it and presumably he did so voluntarily. If it was in force and effect at the time of the accident, and the work he was doing was being done under its terms and provisions, he must be held to have been an independent...