Mellaney v. Hotel

• Decision Date: 22 June 1939
• Docket Number: No. 2.,2.
• Citation: Mellaney v. Hotel, 289 Mich. 384, 286 N.W. 656 (Mich. 1939)
• Parties: MELLANEY v. FORDMONT HOTEL et al.
• Court: Michigan Supreme Court

289 Mich. 384

286 N.W. 656

MELLANEY

v.FORDMONT HOTEL et al.

No. 2.

Supreme Court of Michigan.

June 22, 1939.

Appeal (in Nature of Certiorari) from the Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Stella Mellaney, claimant, opposed by the Fordmont Hotel and the State Accident Fund. From an award of compensation made by the Department of Labor and Industry, the defendants appeal.

Award affirmed.

Argued before the Entire Bench.

Harry H. Mead, of Detroit (Miller, Bevan, Horwitz & Des Roches, of Detroit, of counsel), for appellants.

John F. Linehan, of Detroit, for appellees.

NORTH, Justice.

The Fordmont Hotel and its insurer, State Accident Fund, have brought this appeal in the nature of certiorari from an award of compensation made by the Department of Labor and Industry to Stella Mellaney for herself and six children as dependents of Richard Mellaney, deceased.

The Fordmont Hotel, herein designated as defendant, contracted with the Pfefferl Sign Co. to paint certain signs on the exterior walls of a hotel building in Detroit. Both the Fordmont Hotel and the Pfefferl Sign Co., were Michigan Corporations. The former was under the Workmen's Compensation Act, Comp.Laws 1929, § 8407 et seq., the latter was not. Richard Mellaney while doing this sign painting, under an oral agreement with the Pfefferl Sign Co., fell from the scaffold or stage he was using and died the same day from injuries sustained. Plaintiff claims, and the department found, Richard Mellaney was an employee of the Pfefferl Sign Co; and therefore under the statutory provision (Comp.Laws 1929, Sec. 8416; Stat.Ann. 17.150) defendant and its insurers were liable for compensation to the dependants of deceased. The sole question for review is appellants' contention that Richard Mellaney was not an employee, but instead was doing this sign painting as an independent contractor. Both the factual and the legal aspects of this record are so well presented in the opinion of the commissioners that we quote in part:

‘Richard Mellaney, deceased, was an expert wall sign painter. The sign company engaged him to do the wall sign work on the said Fordmont Hotel job. It was understood by and between the sign company and Mellaney that he was to receive $25.00 for painting the said signs. In reaching this figure, it was estimated that the work would require 20 hours to complete and the basic hourly rate for such work was computed at $1.25. Mellaney proceeded with the work in accordance with the sketch or specifications given him by the sign company. The sign company furnished the paint and all materials and also the painter's scaffold or stage. Mellaney used his own ropes and hooks. The sign company used its own truck to deliver the equipment and material to the job and furnished a helper to assist in the delivery of the equipment and material. The helper also gave Mellaney some assistance in moving the scaffoldor stage but was not regularly in attendance on the job. The helper was paid by and was an employe of the sign company.

‘The record does not indicate that Mellaney had any authority to substitute another of his own choosing to paint the said signs. In view of the highly skilled and specialized nature of the work involved, we believe the natural inference to be that Mellaney had no such authority and that it was understood by the parties that the sign painting would be done by him personally. The sign company had the responsibility of seeing that the painting conformed to specifications but, beyond that, there was no immediate or direct supervision of Mellaney's work. Neither was there any immediate or direct supervision of deceased's hours of work except that it was contemplated that the job would not require more than 20 hours and that Mellaney, in order to avail himself of the paint and materials and helper furnished by the sign company would, to some extent, have to accommodate his hours of work to those of the regular employes of that company. On October 28, 1636, and while painting one of said signs, Mellaney fell from the scaffold and received injuries from which he died later in the same day. The sign company engaged another painter to complete the work without making any attempt to determine whether or not a personal representative had been appointed for the deceased who might wish to arrange for the completion of the painting.

‘The defense is based upon the theory that Mellaney was an independent contractor and was not an employe of the sign company at the time the accident occurred. The test of the particular relationship herein involved is the right of the sign company to control Mellaney's work in painting the said signs. The fact that there was no immediate or direct supervision of the mechanics of the painting involved is not controlling. Mellaney was an expert sign painter and he was selected because of his ability to perform service in such a specialized filed. In such cases, the absence of direct supervision cannot be held to be determinative unless all skilled workers are to be classed as independent contractors. The sign company had the...