Moore v. Fleischman Yeast Co.

• Decision Date: 01 October 1934
• Docket Number: No. 89.,89.
• Citation: 256 N.W. 589,268 Mich. 668
• Parties: MOORE v. FLEISCHMAN YEAST CO. et al.
• Court: Michigan Supreme Court

268 Mich. 668

256 N.W. 589

MOORE

v.FLEISCHMAN YEAST CO. et al.

No. 89.

Supreme Court of Michigan.

Oct. 1, 1934.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by John Moore, claimant, opposed by the Fleischman Yeast Company, employer, and Employers' Liability Assurance Corporation, insurer. From an award of compensation by the Department of Labor and Industry, the employer and the insurer appeal.

Reversed and remanded, with directions.

Argued before the Entire Bench.Mason, Alexander, McCaslin & Cholette, of Detroit (E. Dean Alexander, of Detroit), for appellants.

Gloster, Giller & Briggs, of Detroit, for appellee.

BUTZEL, Justice.

The Fleischman Yeast Company and its insurer appeal from an order of the Department of Labor and Industry awarding John Moore compensation of $17.33 per week. As they claim that the relation of employer and employee never existed, and that Moore was either an independent contractor or at most a licensee, we shall briefly review the testimony.

The company employed 34 salesmen at its branch in Detroit where they assembled each day, and as they removed the coffee, etc., required for the day's business from the containers, they scattered the broken cartons, boxes, waste paper, and tin foil on the floor of the premises and sidewalk leading thereto. Later in the day, passing junkmen would collect this waste material without cleaning up the premises.

One day, while Moore was driving a horse and wagon, the company's foreman hailed him and stated that he was looking for ‘a man to do the janitor's work on the first floor, keep the paper cleaned up, sweep the place out and clean the office out.’ He was to haul the waste away, dispose of it as it had a market value, and as compensation for his work he could keep the proceeds. Moore agreed to the proposal, went to work, and realized the sum of $25 per week from the sale of the waste materials. He was obliged to be at the plant at 5 a. m., work for from 4 to 5 hours, then return again 5 p. m., and again work an equal length of time. After working three weeks he was given the additional job of removing the ashes, for which he was paid the sum of $1 per week, thus bringing his gross earnings to $26 per week. Once when tardy on account of slippery weather, he was reprimanded by the foreman and told that the place had to be kept clean, because the inspectors came in each day; that if he could do this, he could keep the job, otherwise he would be replaced. He further was obliged to remove the paper from the cans in the lavatory, sweep it out, see that all the hand trucks were in the garage at nighttime, and, if not in, then to bring them in and line them up, sweep all the places from which he took the paper, etc., and dust the shelves. One day while bringing up cans of ashes from the basement, his foot was caught in the elevator and the flesh was torn off at the heel.

The testimony shows that Moore was not an independent contractor or licensee. He was hired to do the work of a janitor. The fact that the employer retained the right of control over his work is very persuasive of an employer-employee relationship. Tuttle v. Embury-Martin Lumber Co., 192 Mich. 385, 158 N. W. 875, Ann. Cas. 1918C, 664;Zoltowski v. Ternes Coal & Lumber Co., 214 Mich. 231, 183 N. W. 11. The fact that Moore received his pay through hauling away the waste materials with horse and wagon furnished by him does not make him an independent contractor. The relationship is somewhat analogous to hauling by teamsters who use their own horses and wagons and receive a stipulated price per load. We have held that under certain circumstances they were employees. Tuttle v. Embury-Martin Lumber Co., supra; Van Simaeys v. George R. Cook Co., 201 Mich. 540, 167 N. W. 925;Warner v. Fullerton-Powell Hardwood Lumber Co., 231 Mich. 328, 204 N. W. 107;Dennis v. Sinclair Lumber & Fuel Co., 242 Mich. 89, 218 N. W. 781. At the time Moore was employed, it was recognized that the waste material could be readily sold; that Moore was to haul it away and keep the proceeds from its sale, in return for doing the janitor's work. Under the circumstances, he was receiving the equivalent of cash for his services. Moore was at all times subject to the company's control; he could not substitute some one else in his place; he could be discharged at any time without a breach of contract. We are in accord with the Board's findings as to the employment relationship.

Appellants contend that although Moore's injury was serious, it did not affect the bone, and that, were it not for a syphilitic condition, it would have been cured within a comparatively short time; that antisyphilitic treatment was necessary to condition the blood so as to permit healing, and that during the period he submitted to such treatment his condition improved; that he stopped taking the treatment and has, therefore, made no further progress. They therefore claim that compensation should have been suspended from the time when Moore refused to submit to such further treatment. See Kricinovich v. American Car & Foundry Co., 192 Mich. 687, 159 N. W. 362;O'Brien v. Albert A. Albrecht Co., 206 Mich. 101, 172 N. W. 601, 6 A. L. R. 1257;Myers v. Wadsworth Mfg. Co., 214 Mich. 636, 183 N. W. 913. Defendants, however, raise this claim for the first time on the appeal to this court. The Department of Labor and Industry adopted Rules of Practice and Procedure for carrying out the provisions of the Workmen's Compensation Act. Rule 15 provides that if the employer or insurer deny liability, they must file an answer setting forth with reasonable detail and certainty all the essential grounds of defense, to which they will be limited both on the hearing before the deputy and on review before the...