McKissic v. Bodine

• Citation: 201 N.W.2d 333,42 Mich.App. 203
• Decision Date: 26 July 1972
• Docket Number: Docket No. 12780,No. 2,2
• Parties: John S. McKISSIC, Plaintiff-Appellant, v. Harold BODINE and Aetna Casualty and Surety, Defendants-Appellees
• Court: Court of Appeal of Michigan (US)

Page 333

201 N.W.2d 333

42 Mich.App. 203

John S. McKISSIC, Plaintiff-Appellant, v. Harold BODINE and Aetna Casualty and Surety, Defendants-Appellees.

Docket No. 12780.

Court of Appeals of Michigan, Division No. 2.

July 26, 1972.

Leave to Appeal Denied Sept. 19, 1972.

Released for Publication Oct. 31, 1972.

Camille Sam Abood, Abood, Abood & Abood, Lansing, for plaintiff-appellant.

David C. Coey, Lansing, for defendants-appellees.

Before QUINN, P.J., and FITZGERALD and VanVALKENBURG, ^* JJ.

VanVALKENBURG, Judge.

The sole issue raised in this appeal is whether plaintiff was an employee of the defendant Harold Bodine and thereby entitled to workmen's compensation as provided by law at the time of his injury on January 19, 1969. The Referee and a majority of the Workmen's Compensation Appeal Board held that he was an independent contractor and therefore not entitled to benefits.

The facts are not materially in dispute. The plaintiff was employed full-time at one of the Fisher Body plants, but on the day in question was off work due to the fact that he was recovering from a prior injury. He held himself out as a part-time handyman, advertised as such and caused a sign, 'McKissic Contracting', to be painted on the side of his truck. He furnished his own materials, engaged his own helpers, and worked at such times as he would be available. The activities undertaken included repairs and general maintenance such as cement work, painting, electrical wiring, and general handy work.

Defendant Bodine, who owned certain rental properties, often made use of these services. Each job was carried out as a separate contract; plaintiff either making a bid or being told by Bodine what he would be willing to pay. Plaintiff retained the option of accepting or rejecting any offer. It was on this basis that plaintiff and Bodine agreed upon the figure for the job of installing certain plastic upon an apartment window. During the course of this undertaking plaintiff fell from a ladder and sustained the injury for which he now seeks compensation.

After the accident, the defendant filed a Form 100. Also, it appears that defendant carried workmen's compensation insurance, not on this particular plaintiff but on anyone who qualified for benefits under the provisions of the act.

Heretofore, the determination of whether or not a given person was an employee or an independent contractor centered on the question of control, as will be hereinafter explained. That alone is no longer the law in this State.

The new 'economic reality' theory was first enunciated by the United States Supreme Court in United States v. Silk, 331 U.S. 704; 67 S.Ct. 1463; 91 L.Ed. 1757 (1947), in which the Court maintained that the primary consideration in determining the definition of the word 'employee' is whether the definition of the statutory language is sufficient to secure to the individual the rights and protection afforded by the legislation.

The first appearance in Michigan of the 'economic realty' theory is found in a dissenting opinion authored by Justice Smith in Powell v. Employment Security Commission, 345 Mich. 455, 464, 478, 75 N.W.2d 874 (1956). There the plaintiff, the Powell Studio, engaged several women, including on Rebecca Cohen, for the express purpose of retouching negatives. This work was carried on in their respective homes. The majority of the Court at that time held that the ladies were independent contractors.

We quote from the dissenting opinion:

'They are utterly dependent, as a matter of economic reality, upon another, their employer. It was the distress of such dependent workers, and their families, that this act was designed, in part, to alleviate.'

We quote further:

'The test employed is one of economic reality. It looks at the task performed, whether or not it is a part of a larger common task, 'a contribution to the accomplishment of a common objective."

There the matter rested until our Supreme Court handed down its decision in Tata v. Muskovitz, 354 Mich. 695, 699, 94 N.W.2d 71, 74 (1959):

'It is time now to complete the cycle of departure from and return to All of the measures by which, under the clear weight of authority in this country, the relationship of employer and employee is rightfully identified for compensatory purposes. I move, then, with sight aimed at definite settlement of the steadily recurring question the parties--in the light of the quoted and adopted finding of facts--have stated and counterstated, that we now establish Mr. Justice Smith's dissenting opinion in Powell v. Employment Security Comm., 345 Mich. 455, 462, 75 N.W.2d 874 (1956), as proper guide to relevant interpretation of the workmen's compensation law. Tested by such dissent, the appeal board was clearly right in holding that the relationship of employer and employee existed between plaintiff's decedent, and the defendant Muskovitz, at the time of the fatal cave-in of the trench.'

Later Justice Smith had occasion to enlarge upon this concept in Schulte v. American Box Board Co., 358 Mich. 21, 33, 99 N.W.2d 367, 372 (1959):

'Control is a factor, as is payment of wages, hiring and firing and the responsibility for the maintenance of discipline, but the test of economic reality views these elements as a whole, assigning primacy to no single one.'

The Supreme Court has since reaffirmed that 'economic reality' rather than 'control' is the proper test. See Goodchild v. Erickson, 375 Mich. 289, 134 N.W.2d 191 (1965).

This Court had the occasion to consider the issue in Cronk v. Chevrolet Local 659, 32 Mich.App. 394, 398, 189 N.W.2d 16, 18 (1971), wherein it was stated:

'The determination of the master-servant relationship for purposes of the Workmen's Compensation Act no longer depends upon control. Rather, the court looks to the 'economic reality' of the relationship'.

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