Sliter v. Cobb, Docket No. 10537

• Decision Date: 19 October 1971
• Docket Number: No. 3,Docket No. 10537,3
• Citation: 194 N.W.2d 75,36 Mich.App. 471
• Parties: Mary SLITER et al., Plaintiffs-Appellants, v. Marion COBB et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 75

194 N.W.2d 75

36 Mich.App. 471

Mary SLITER et al., Plaintiffs-Appellants, v. Marion COBB et al., Defendants-Appellees.

Docket No. 10537.

Court of Appeals of Michigan, Division No. 3.

Oct. 19, 1971.

Released for Publication Feb. 9, 1972.

Sherman H. Cone, Cholette, Perkins & Buchanan, Grand Rapids, for plaintiffs-appellants.

James B. McQuillan, Ryan, McQuillan & Vander Ploeg, St. Joseph, for Marion Cobb and Ronald Lee Sims.

Carl L. Reagh, Lansing, for The Benton Harbor News Palladium.

Before R. B. BURNS, P.J., and HOLBROOK and LEVIN, JJ.

HOLBROOK, Judge.

This is an appeal by plaintiffs from the grant of a motion for summary judgment in favor of defendant-appellee, The Benton Harbor News Palladium.

In June, 1968, defendant Marion Cobb began delivering 'The Benton Harbor News Palladium', a newspaper published by appellee. Defendant Cobb was designated as a 'Motor Route Carrier' in the written lease agreement entered into by Cobb and appellee newspaper. On July 11, 1968, defendant Cobb invited 2 of his friends, defendant Ronald Lee Sims to drive and William Hauch to accompany him while he delivered that day's newspapers. This day had been chosen by Cobb to bill his customers for the month of August, 1968. It was necessary for Cobb to fill out and then insert a billing card in each newspaper. Because he filled out the cards while delivering the newspapers, it was necessary for someone else to drive his motor vehicle. His wife usually accompanied him on billing days; however, on this particular day his wife had gone shopping and had not returned in time to drive for him.

After delivering the newspapers to all his regular customers, Cobb proceeded to deliver some 'sample' newspapers in an attempt to gain new customers. Approximately 3/4 of a mile beyond where the last house to which the last sample was delivered and which was outside of the route area of Mr. Cobb, defendant Sims failed to stop at a stop sign and a collision occurred between Cobb's automobile and the automobile in which the plaintiffs were riding.

On March 27, 1969, the plaintiffs filed a complaint in the Circuit Court for the County of Berrien alleging that they had sustained serious personal injuries as the result of the negligent operation of the motor vehicle owned by Cobb and operated by defendant Sims. Plaintiffs also alleged that defendant Cobb was an 'employee' of appellee newspaper and was acting within the scope of his employment at the time of the accident; and therefore, appellee newspaper, as employer of Cobb, was also liable to plaintiffs for their damages.

On May 18, 1969, appellee newspaper filed a motion for summary judgment asserting that defendant Cobb was not an employee, but rather was an independent contractor doing work for the Benton Harbor News Palladium; and therefore, the appellee newspaper could not be held liable to plaintiffs for any negligence of defendant Marion Cobb. On May 27, 1969, appellee newspaper filed an amended motion for summary judgment.

On July 13, 1969, the motion was heard by the Hon. Chester J. Byrns, Berrien County circuit judge. The trial court in deciding the motion considered: (a) the pleadings; (b) the written interrogatories propounded by the plaintiffs to the said defendants and answered by Charles H. Bowie, circulation manager of the Palladium Publishing Company; (c) the 2 depositions of defendant Marion Cobb; (d) the Motor Route Lease agreement between defendant Marion Cobb and appellee Palladium Publishing Company; (e) the affidavit of Charles H. Bowie in support of appellee Benton Harbor News Palladium's motion for summary judgment; and (f) the parties' briefs and oral arguments.

The learned trial judge decided that Cobb was as a matter of law an independent contractor and granted appellee Benton Harbor News Palladium's motion for summary judgment as provided by GCR 1963, 117.

Plaintiffs raise 2 issues on appeal which we consider in order.

I.

Did the evidence presented in connection with appellee newspaper's motion for summary judgment, when viewed most favorably to plaintiffs, create a question of fact as to whether appellee newspaper maintained sufficient control over its news carrier Marion Cobb, to warrant a jury finding that Marion Cobb was, under the traditional test of employment, an employee of The Benton Harbor News Palladium?

The basis for relationship between the parties herein is the 'Motor Route Lease' which is as follows:

'For and in consideration of the following covenants on the part of Marion Cobb, hereinafter referred to as the Lessee, The Palladium Publishing Company, a Michigan Corporation publishing The News-Palladium, at Benton Harbor, Michigan, hereinafter referred to as the Lessor, leases to Lessee a list of News-Palladium subscribers and the right to solicit additional subscribers living in an area described as follows:

'Covert, South Haven #9402

'1. Lessee covenants and agrees as follows:

'(a) That he will purchase his newspapers from Lessor for $5.83 per hundred and sell and deliver said newspapers daily, except Sunday, to the subscribers on the above route at the established retail rate per subscriber, to wit: .55 per week; 2.40 per month; 7.20 quarterly; 14.40 semi-annually; 28.80 per year, and pay promptly each week to Lessor the sum of 5.83 per hundred on a settlement day to be determined by Lessor; and further, that he will make full and faithful accounting for advance collections from suctomers (sic) by Lessee.

'(b) That he will maintain an accurate and up-to-date subscription list of all customers, together with a road map of said customers; that he will disclose said list to no person except the Lessor which reserves the right of inspection of said list at all times; and upon termination of this lease, he will yield up said list as the exclusive property of Lessor to Lessor only.

'(c) That he will do (his, her) utmost to promote and expand the subscription list on the route described above; and that he will deliver no other publications on said route except as may be authorized in writing by the Lessor.

'(d) That he shall receive weekly from Lessor the sum of .07 per mile travelled in servicing said route as a mileage allowance, the Lessor reserving the right at all times to verify the mileage allowances claimed by Lessee; any unpaid mileage allowances may be held by Lessor in mitigation of any damage on its part as more fully set forth in Paragraph 3.

'(e) He shall, at his own expense, furnish to Lessor a fidelity bond in the penal sum of $1,000.00 with such sureties as Lessor may direct; in lieu, thereof, and at the discretion of Lessor, he shall deposit with Lessor the sum of 100.00 payable as follows: 92.00 down and 5.00 per week for - - - weeks, or until the total deposit has been paid; and that said bond or deposit shall be for (his, her) full and faithful performance of this lease. It is further agreed that lessor reserves the right to increase both the principal sum of this bond and the weekly accrual amount paid by lessee to correspond with the number of customers servised (sic) on said route as may be determined by periodic audit.

'2. Lessor may cancel this agreement at any time and without notice for good faith reason or reasons, including nut (sic) not limited to his physical or mental incapacity, failure to perform this agreement in all of its provisions, or intoxication. He may cancel this agreement by first giving Lessor 30-days notice of intention so to do.

'3. Any unpaid mileage allowance and/or the cash deposit described in subparagraph 1(e) shall be available to Lessor, in whole or in part, in mitigation of any damage sustained by it through his breach of this agreement.

'In testimony whereof, the parties set their hands this 1st day of July, 1968.

'Lessee (signed) Marion W. L. Cobb

'Lessor PALLADIUM PUBLISHING COMPANY,

'Benton Harbor, Michigan

'By (signed) C. R. Bowie

'Circulation Manager

'Motor Route Deposit

'To: THE PALLADIUM PUBLISHING COMPANY

'Per your direction of even date, I hereby deposit 92.00 with you and agree to deposit further the sum of 5.00 per week until the sum specified in subparagraph 1(e) is reached.

Dated 1 July 1968

Lessee (signed) Marion W. L. Cobb'

It was necessary for the trial court in considering and determining the motion for summary judgment to decide whether as a matter of law, defendant Cobb, a newspaper routeman, was an independent contractor or were there sufficient facts present to submit to the jury the question of whether Cobb was an employee of the newspaper publishing company? Although the burden was upon the plaintiffs to prove Cobb was an employee of appellee Benton Harbor News Palladium and that he was, at the time of the accident, acting in the course of his employment, all disputed facts were required to be resolved in plaintiffs' favor. Durant v. Stahlin (1965), 375 Mich. 628, 135 N.W.2d 392.

The generally-accepted definitions of an independent contractor are stated in 41 Am.Jur.2d Independent Contractors, § 1, pp. 737, 738, 739 as follows:

'There are many definitions of the term 'independent contractor.' One of the most frequently stated is to the effect that an independent contractor is one who, in exercising an independent employment, contracts to do certain work according to his own methods, without being subject to the control of his employer, except as to the product or result of his work. An independent contractor has also been defined as one who carries on an independent employment in pursuance of a contract by which he has entire control of the work and the manner of its performance; as one who contracts to do a specific piece of work, furnishing his own assistants and executing the work in accordance with either entirely his own ideas or a plan previously given to him by the person for whom the work is done, without being subject to the orders of the latter with respect to the details of the work; * * *. Accordingly, very broadly speaking, where an...