Sargent v. A. B. Knowlson Co.

• Decision Date: 13 November 1923
• Docket Number: No. 28.,28.
• Parties: SARGENT v. A. B. KNOWLSON CO. et al.
• Court: Michigan Supreme Court

224 Mich. 686

195 N.W. 810

SARGENT

v.A. B. KNOWLSON CO. et al.

No. 28.

Supreme Court of Michigan.

Nov. 13, 1923.

Certiorari to Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Maggie Sargent against the A. B. Knowlson Company and others for compensation for the death of her husband. On certiorari to review an award of the full board. Award affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Brown & Kelley, of Lansing, for appellants Wykes-Schroeder Co. and Michigan Employers' Casualty Co.

Alexander & Ruttle and Albert E. Meder, all of Detroit, for all appellants.

Crane & Crane and W. J. Nash, all of Saginaw, for defendants Schornstein and Lumbermen's Mutual Casualty Co.

Taggart & Kingston, of Grand Rapids, for appellee.

SHARPE, J.

On October 1, 1921, J. F. Sargent, a deputy sheriff of Kent county, and the then husband of plaintiff, procured the signatures of A. B. Knowlson Company, S. A. Norman & Company, the Brummeler-Van Stren Company, Grand Rapids Ice & Coal Company, Century Fuel & Materials Company, R. M. Schornstein, Rex-Robinson Furniture Company, E. J. Conroy, Breen & Halladay Fuel Company, Evans & Retting Lumber Company, and Central Fuel Company to a writing wherein they agreed to pay him 50 cents per night ‘for services in the capacity of watchman’ for certain of their property located in the city of Grand Rapids. Prior to April 30, 1922, the Brummeler-Van Stren Company, the Century Fule & Materials Company, and E. J. Conroy terminated such employment by agreement with Sargent. He also entered into agreements with F. Van Driele & Co., Wykes-Schroeder Company, and the Toledo Plate & Window Glass Company to watch their premises, the first two agreeing to pay him $5 per month and the latter 50 cents per night for such services. All of these firms were operating under the provisions of the Workmen's Compensation Act (Acts 1912 [Extra Sess.] No. 10) except the Evans & Retting Lumber Company.

On the night of April 30, 1922, Sargent, who had been furnished a key to the offices of some of the plants he was watching, was in the office of R. H. Schornstein. The police had no notice that he was furnished with those keys, and, on their attention being called to the light in Schornstein's office, three officers were sent to investigate. Seeing a man therein, they suspected that he was a burglar and demanded that he come out. A mêlée followed in which Sargent was shot and killed and two of the officers were wounded.

The plaintiff made claim to compensation under the act against all those whose plants Sargent was watching at the time of his decease. The deputy commissioner who conducted the arbitration awarded compensation against Schornstein and the company carrying his risk, only, at the rate of $7 per week for 300 weeks. On appeal to the full board, all of the defendants whose premises he was then watching, who were operating under the act, were held liable. The amount was increased to $14 per week, and each of the ten ordered to pay $1.40 per week for 300 weeks. This order is before us for review by certiorari on petition of all those against whom the award was made except Schornstein and the Breen & Halladay Fuel Company.

1. It is urged by all of the defendants that Sargent was, as to the service rendered by him, an independent contractor, and not an employee. The written memorandum provided for payment at 50 cents per night to Sargent ‘for services in the capacity of watchman for our property.’ Under it he was to render personal service and to be paid therefor. The arrangement with those who did not sign the memorandum was of like nature. We can see no distinction between such an agreement and any other in which a man is hired by the day or month to perform a particular service. Counsel say that--

‘He was authorized to do the work according to his own methods. He was not obligated to do the work in accordance with the wishes of the various respondents.’

The service to be rendered by a night watchman is well understood. The deceased agreed to perform it. Manifestly, he was to do so in the usual way. There is no intimation that he could substitute another of his own choosing to do it for him. He entered into a undertaking for a personal service on his part, a service of hiring, and we think he was clearly an employee while performing it. In Schroetke v....