Salmi v. New Era Life Ass'n, 83.

• Decision Date: 16 June 1936
• Docket Number: No. 83.,83.
• Citation: 267 N.W. 880,276 Mich. 457
• Parties: SALMI v. NEW ERA LIFE ASS'N et al.
• Court: Michigan Supreme Court

276 Mich. 457

267 N.W. 880

SALMI

v.NEW ERA LIFE ASS'N et al.

No. 83.

Supreme Court of Michigan.

June 16, 1936.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Jennie R. Salmi, employee, opposed by the New Era Life Association, employer, and the Maryland Casualty Company, insurance carrier. The Department of Labor and Industry denied an award of compensation, and the employee appeals in the nature of certiorari.

Order of the Department of Labor and Industry affirmed.

Argued before the Entire Bench, except FEAD, J.

George C. Quinnell, of Marquette, for appellant.

Mason, Davidson & Mansfield, of Detroit, for appellees.

NORTH, Chief Justice.

Plaintiff, Jennie Salmi, alleging that she was an employee of the defendant New Era Life Association and that she sustained an accidental injury arising out of and in the course of the alleged employment, petitioned for compensation. An award of compensation was made by the deputy; but, upon review by the full board, compensation was denied on the ground that plaintiff was not an employee, but instead ‘was an independent contractor.’ Plaintiff has appealed in the nature of certiorari.

Plaintiff and her husband, Reino Salmi, were and are in the business of conducting an insurance agency in Marquette, Mich. They write insurance other than that of the defendant New Era Life Association, and keep other persons in their employ in their general insurance business. In 1930 this insurance agency entered into a written contract with the defendant company. It was therein provided:

‘First party (defendant) hereby appoints second party (Salmi and Salmi) its agent to solicit applications for life insurance and/or health and accident insurance, either personally, or through sub-agents as hereinafter provided, to collect, receipt for and remit first year premiums and such renewal premiums as the first party may authorize. * * *

‘Second party shall have the right to employ sub-agents and solicitors, with the consent of the first party, in such territory and under such terms and conditions as set forth in Section 4.

‘* * * Such sub-agents, representatives, and solicitors shall report to and through second party. First party will not place other agents or solicitors in territories and localities where second party is already represented by sub-agents or solicitors. * * *

‘Second party and his sub-agents shall have the right to solicit for other lines of insurance, except life and/or health and accident insurance in such companies as he now represents. * * *

‘Second party shall receive in full payment for such services as are herein mentioned, and for all expenses incurred thereby, commissions on first year and renewal premiums as set forth in the following schedule. * * *

‘In case of death of either Reino Salmi or J. R. Salmi, all rights and privileges of second party herein shall accrue to the survivor. * * *

‘This agreement shall take effect on the 1st day of November 1930, * * * and no amendment or modification to or of this agreement shall be binding unless in writing hereon, or attached hereto, duly accepted by second party and approved by one of the general officers of first party.’

Plaintiff testified: ‘But we have additional agreements besides this' (referring to the above quoted contract). It is plaintiff's claim that, in addition to the written agreement with the defendant company, there was a supplemental oral employment of plaintiff, and that it was while rendering services as an employee under the oral agreement that she sustained the accidental injury in consequence of which she seeks compensation. We quote from appellant's brief her claim as to the alleged oral contract: ‘* * * For example, under the oral agreement, it was her duty to instruct other agents of the company, she had to make out daily, weekly and monthly reports, adjust difficulties with policy holders, had charge of collections, and had a drawing account. The drawing account was paid absolutely whether or not the commissions were equal to it. All collections made were remitted to the home office and she was paid from the home office by check. All of these things are entirely outside of the written agreement. * * *’

The record does not fully sustain plaintiff's claim. It is clear some of the duties enumerated above were within the terms of the written contract either expressly or by necessary implication. This is largely, if not wholly, so as to the authority over, and responsibility for, the subagents of Salmi & Salmi. It may be true, as appellant asserts, that, because of a new oral agreement for a $50 weekly drawing account, the Salmi Agency undertook some additional duties, such as adjusting difficulties with policyholders, making additional reports, etc. But we think at the time...