Wing v. Clark Equip. Co.

• Decision Date: 10 November 1938
• Docket Number: No. 33.,33.
• Citation: 286 Mich. 343,282 N.W. 170
• Parties: WING v. CLARK EQUIPMENT CO. et al.
• Court: Michigan Supreme Court

286 Mich. 343

282 N.W. 170

WING

v.CLARK EQUIPMENT CO. et al.

No. 33.

Supreme Court of Michigan.

Nov. 10, 1938.

Appeal from Department of Labor and Industry.

Proceeding under the Workmen's Compensation Act by Dee A. Wing, claimant, opposed by the Corporations Auxiliary Company and the Clark Equipment Company, employers, and the Liberty Mutual Insurance Company, insurer. From an order of the Department of Labor and Industry granting an award against the Clark Equipment Company and the Liberty Mutual Insurance Company after the claim against the Corporations Auxiliary Company had been settled, the Clark Equipment Company and the Liberty Mutual Insurance Company appeal.

Award set aside and case remanded for proceedings in accordance with opinion.

WIEST, C. J., dissenting.

Argued before the Entire Bench.

Arthur R. Sherk, of Grand Rapids, for appellants.

Harry F. Briggs, of Lansing, and Levin, Levin & Dill, of Detroit, for appellee.

NORTH, Justice.

This is an appeal from an award of compensation made against the Clark Equipment Co. and the carrier of its risk, Liberty Mutual Insurance Co., the reasons urged in support of the appeal being hereinafter noted and considered.

The Corporations Auxiliary Co. is engaged in making industrial surveys and for that purpose employs persons known as efficiency engineers, sometimes called undercover men. Such men are placed in the employment of companies who desire the services of the Corporations Auxiliary Co. and are thus enabled to obtain first-hand information as to conditions in and about the customer's plant. Reports of such conditionsare made by the investigator to the Corporations Auxiliary Co. and the company in turn makes its report and recommendations to the plant being investigated. The status of the investigator is kept secret from other employees of the company whose affairs are being checked.

Plaintiff, Dee A. Wing, was such an investigator in the employ of the Corporations Auxiliary Co. and this company made an arrangement with the defendant Clark Equipment Co. whereby Wing was placed in the latter's factory. It is the claim of plaintiff that while so employed he was suddenly overcome by exposure to cyanide fumes. In his claim for compensation plaintiff says: ‘The injury is debilitated physical and nervous condition, so affecting use of limbs, hands, organs and senses as to make the condition an impairment of total disability; chronic cyanide poisoning.’ Plaintiff made application for an adjustment of his claim for compensation against both the Corporations Auxiliary Co. and the Clark Equipment Co.

The matter came on for hearing before the deputy commissioner and substantially a day's time was consumed in the presentation of plaintiff's case. Thereupon the hearing was adjourned for 22 days. During this interim an agreement was entered into between plaintiff and the Corporations Auxiliary Co. for a settlement in full of compensation due from the latter. This settlement and an agreement between plaintiff and this employer to permanently settle plaintiff's claim for compensation against it upon the payment of $948 were approved by the department of labor and industry. On the adjourned day of the hearing before the deputy plaintiff's counsel announced the settlement made with the defendant Corporations Auxiliary Co. The deputy commissioner then raised the question as to his right to proceed with the hearing or as to what disposition he should make of the same. After some considerable colloquy a motion by the Clark Equipment Co. to dismiss plaintiff's petition as to it was granted. This ruling seems to have been made in consequence of its contention that the agreement which plaintiff had entered into with the Corporations Auxiliary Co. disclosed that his disability arose out of and in the course of employment with that company and not in his employment with the Clark Equipment Co.; and further that since plaintiff had settled with one of the defendants he could not claim further compensation from the other. An appeal was taken to the full board by plaintiff from the deputy's dismissal of his petition for an award against the Clark Equipment Co.

After the appeal was perfected the Clark Equipment Co. filed two petitions with the board asking that it be permitted to take further testimony. Each of these petitions was denied. It also filed two petitions with the board asking leave to amend its answer. Neither of these petitions seem to have been passed upon by the commission. Instead, on the record then before it the department awarded compensation to the plaintiff from the Clark Equipment Co. and its insurer at the rate of $12.06 per week, ‘the proportionate share of Clark Equipment Company's liability for plaintiff's total disability, from May 2, 1934, until the further order of the commission.’ It is from this order that the Clark Equipment Co. and its insurer have appealed, and they assign as reasons in support thereof the following:

(1) Appellants claim that plaintiff was not an employee of the Clark Equipment Co., but instead was in the employ of the Corporations Auxiliary Co. Appellants' position is not tenable under this record. Plaintiff's contract to work for the Clark Equipment Co. was made with his understanding and consent through Mr. Sumner, a representative of the Corporations Auxiliary Co. The Clark Equipment Company's contract with the Corporations Auxiliary Co. for its service was made with the understanding that the Clark Equipment Co. would tak plaintiff into its employment, so that at the same time plaintiff was working for the Clark Equipment Co. he could also cooperate with the Corporations Auxiliary Co. and thereby enable it to render its contemplated service to the Clark Equipment Co. Pursuant to such an arrangement the Clark Equipment Co. did employ plaintiff. He was placed on the Clark Equipment Company's payroll. He worked for that company the same as any other employee. His hours of labor were fixed by the Clark Equipment Co. He punched the time clock the same as other employees. He worked at various jobs to which he was assigned from time to time by his superiors in the Clark Equipment Co. His agreed rate of pay for services so rendered the Clark Equipment Co. was 55 cents per hour. He received his pay checks from this company the same as its other employees. Plaintiff's average pay from the Clark Equipment Co. was more than $5 per day. He was subject to discharge by his superiors the same as other employees. Plaintiff's reports to the Corporations Auxiliary Co. were made outside of his hours of employment by the Clark Equipment Co. As his compensation from the Corporations Auxiliary Co. plaintiff received $40 per month and 10 cents per hour for each hour that he worked for the Clark Equipment Co. Under such circumstances, we think it convincingly appears that plaintiff was serving two employers at the same time. Each had knowledge that the other was a co-employer of plaintiff. Sargent v. A. B. Knowlson Co., 224 Mich. 686, 195 N.W. 810, 30 A.L.R. 993. All parties concerned were under the Workmen's Compensation Act, Comp.Laws 1929, §§ 8407-8485. The facts in this case are such that the Clark Equipment Co., if otherwise found to be liable, cannot be relieved of paying compensation under its claim that plaintiff was not in its employ.

(2) Appellants further claim that the settlement by plaintiff of his claim for compensation against the one employer released the other, i. e., released the Clark Equipment Co. We think it cannot be said that in every case of dual employment the employers, under the compensation law, are, under all circumstances,...