Warner v. Fullerton-Powell Hardwood Lumber Co.

• Decision Date: 18 June 1925
• Docket Number: No. 20.,20.
• Citation: 231 Mich. 328,204 N.W. 107
• Parties: WARNER v. FULLERTON-POWELL HARDWOOD LUMBER CO. et al.
• Court: Michigan Supreme Court

231 Mich. 328

204 N.W. 107

WARNER

v.FULLERTON-POWELL HARDWOOD LUMBER CO. et al.

No. 20.

Supreme Court of Michigan.

June 18, 1925.

Certiorari to the Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Jay W. Warner for injuries, opposed by the Fullerton-Powell Hardwood Lumber Company, employer, and the Lumbermen's Mutual Casualty Company, insurer. To review an award of the Board of Labor and Industry, the employer and insurer bring certiorari. Affirmed.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Thomas J. Cavanaugh, of Paw Paw, for claimant.

Alexander & Ruttle, of Detroit, for respondents.

BIRD, J.

By occupation plaintiff was a farmer. In January, 1924, he made a contract to haul logs for defendant lumber company for $10 a thousand. The lumber company was carrying on operations in the vicinity of plaintiff's home. Plaintiff furnished his own team and equipment, and cared for them. While on the highway with a load of logs, his rear axle broke and threw him to the ground and seriously injured his head. Application was made to the board of labor and industry for an award. The board of arbitration made an award, and it was affirmed on review by the full board.

Defendants resist the claim on the ground that plaintiff was an independent contractor, and not an employee within the meaning of the compensation law.

In quite a similar case on the facts the following test was laid down to guide in determining whether one was an employee or independent contractor:

‘We are of the opinion that the test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent.’ Tuttle v. Emburg-Martin Lumber Co., 192 Mich. 385.

This test was applied in Opitz v. Hoertz, 194 Mich. 626, 161 N. W. 866, and in subsequent cases.

The contract of the parties was oral and provided for compensation at the rate of $10 per thousand feet. Plaintiff was to use his own team and equipment, and was usually paid every Tuesday after the logs were scaled. It appears that plaintiff worked when he pleased and laid off when he pleased. He could draw a large or a small load, and select his own highway. It appears that the defendant lumber company directed where and how the logs should be unloaded and piled in the railroad yard, and directed what logs should be hauled. It also had the right to terminate plaintiff's employment at any time and to direct that no work should be done on certain days. The contract did not provide that plaintiff should haul any definite number or amount of logs, and Mr. Cochrane, who had charge of the business, testified that plaintiff had no authority to hire another man and team in his stead, or to hire an additional man and team.

The question of determining whether plaintiff was an employee or an independent contractor is one not without difficulty, as is usual in such cases. Plaintiff, when at work, appears to have been treated very much like the other employees that were driving the company's teams, except the fact that the company did not direct the number of loads nor the size of them, which should be drawn daily by him, nor did it provide that he should work every day. The manner of paying plaintiff by the thousand feet made the company rather indifferent to these details. In the essentials the company appears to have controlled. It directed what logs should be drawn, where they should be drawn to, and how they should be piled. It selected its own time for scaling the logs and making payment for the hauling. There was no...