Sliter v. Cobb
Decision Date | 30 August 1972 |
Docket Number | No. 9,9 |
Parties | , 55 A.L.R.3d 1210 Mary SLITER et al., Plaintiff-Appellants, v. Marion COBB et al., Defendants-Appellees. |
Court | Michigan Supreme Court |
Cholette, Perkins & Buchanan, Grand Rapids by Sherman, H. Cone, Grand Rapids, of counsel, for plaintiffs-appellants.
Carl L. Reagh, Foster, Lindemer, Swift & Collins, Lansing by John L. Collins, Lansing, of counsel, for defendant-appellee, The Benton Harbor News Palladium.
Before the Entire Bench.
Plaintiffs herein brought action as the result of an accident between a vehicle operated by Mary Sliter and an automobile owned by defendant Cobb and driven by defendant Sims. Plaintiffs filed suit on March 27, 1969, asserting liability on the part of defendant Benton Harbor News Palladium. They contended that defendant Sims was driving defendant Cobb's vehicle at the request of Cobb, who was delivering newspapers pursuant to an agreement between Cobb and The Benton Harbor News Palladium; that at the time of the accident defendant Cobb was an employee of the Palladium; that the accident occurred in the course and scope of his employment and, thus, defendant Benton Harbor News Palladium was liable for plaintiffs' injuries.
On May 18, 1970, defendant Benton Harbor News Palladium (hereinafter referred to as the News) filed motion for summary judgment, asserting that Cobb was an independent contractor and, therefore, defendant News could not be held liable. An amended motion for summary judgment was filed on May 27, 1970, which motion was granted by the trial court on July 13, 1970. The court held that defendant Cobb was an independent contractor, not an employee of the News. The Court of Appeals affirmed the grant of summary judgment basing its opinion on Gall v. Detroit Journal Co., 191 Mich. 405, 158 N.W. 36 (1916). Judge Levin dissented in a separate opinion. 36 Mich.App. 471, 194 N.W.2d 75. We granted leave to appeal. 386 Mich. 780.
Both parties agree on the issue raised on this appeal. The agreed issue is: Whether the evidence presented in connection with defendant News' motion for summary judgment, when viewed most favorable to plaintiffs, creates a question of fact as to whether defendant newspaper maintained sufficient control over its news carrier, Cobb, to warrant a jury finding that Cobb was, under the traditional test of employment, an employee of defendant News?
As stated, the majority opinion of the Court of Appeals in affirming the grant of summary judgment relied on Gall v. Detroit Journal Co., Supra. In that case plaintiff was also injured in an automobile accident by a person delivering newspapers for the Detroit Journal Company. The jury awarded $500 in damages; the Supreme Court reversed, holding that under the facts of the case the newspaper deliveryman was an independent contractor and not an employee of the newspaper. Our Court stated (191 Mich. pp. 408--409, 158 N.W. p. 37):
The Court in Gall examined the contract there involved and found that under its terms Rebtoy, the newspaper deliveryman, was an independent contractor and not an employee. Thus, it is clear that Gall was decided on the basis of the facts in that case and did not set down a general rule for the liability of newspaper deliverymen.
While it is often difficult to draw a precise line between an independent contractor and an employee, our Court has followed the generally accepted view that the test is one of control. In Marchand v. Russell, 257 Mich. 96, 100--101, 241 N.W. 209, 210 (1932), the Court stated:
'This and many other courts have frequently been called upon to decide whether, on the rendition of service by one person to another, the relation of master and servant or that of independent contractor was created by the employment. In Zoltowski v. Ternes Coal & Lumber Co., 214 Mich. 231, 233, 183 N.W. 11, the following from 26 Cyc. p. 1546, was quoted and said to epitomize the holdings of this court upon the question:
Moreover, when a motion is made for summary judgment, it will not be granted where there are material issues of fact raised on the pleadings. Kaminski v. Standard Industrial Finance Co., 325 Mich. 364, 369, 38 N.W.2d 870 (1949); Klug v. Berkley Homes, Inc., 334 Mich. 618, 55 N.W.2d 121 (1952).
Defendant News cites several cases in support of its view that as a matter of law Cobb was an independent contractor and not an employee. It relies on Mirto v. News-Journal Co., 50 (Terry) Del. 103, 123 A.2d 863 (1956); Peairs v. Florida Publishing Co., 132 So.2d 561 (Fla.App.1961); and Bohanon v. James McClatchy...
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