De Witt v. Grand Rapids Fuel Co.

• Decision Date: 28 June 1956
• Docket Number: No. 7,7
• Citation: 346 Mich. 209,77 N.W.2d 759
• Parties: Henry DE WITT, Plaintiff and Appellee, v. GRAND RAPIDS FUEL COMPANY, Division of Webb Coal Company, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 759

77 N.W.2d 759

346 Mich. 209

Henry DE WITT, Plaintiff and Appellee, v. GRAND RAPIDS FUEL COMPANY, Division of Webb Coal Company Defendant and Appellant.

No. 7.

Supreme Court of Michigan.

June 28, 1956.

Ford, Hinga & Schmiege, Kalamazoo, for appellant.

Marcus, Kelman, Loria, McCroskey & Finucan, muskegon (Jerry S. McCroskey, Muskegon, of counsel), for appellee.

Before the Entire Bench except REID, J.

BLACK, Justice.

Plaintiff applied for and received an award of compensation on authority of section 10(a) of part I of the workmen's compensation law, C.L.1948, § 411.10. June 29, 1955, we granted the defendant self-insurer leave to appeal from such award.

Defendant is a retailer of coal. It stores the coal on its premises in carload lots. The cars are unloaded at a siding adjacent to several of defendant's coal storage silos. Loading and unloading of the silos was and is accomplished by defendant's overhead conveyor system.

Wear and tear from steady use requires that the conveyor system be serviced approximately every 6 months. Defendant does not do its servicing and engages a skilled rigger for that purpose. On several occasions, including the one presently considered, Jacob DeWitt, an independently contracting rigger, had been engaged by defendant for aforesaid servicing purposes.

Plaintiff Henry DeWitt is Jacob's brother. He, like Jacob, was a skilled rigger. On the occasion we are to deal with he was an employee of Jacob and his work was controlled exclusively by Jacob. October 2, 1950, while the two were engaged in carrying out a servicing contract theretofore made by defendant with Jacob, Henry met with an accident from which he received injuries on which this claim for compensation is based. He had been drawn upward for aforesaid servicing purposes by means of a winch to a point near the top of one of the silos and, when at a height of about 35 feet, the supporting cable gave way with result that Henry and the bucket on which he had been hoisted crashed to the ground below.

Defendant's yard manager was promptly apprised of the accident. He called an ambulance, by means of which Henry was taken to a hospital. There is no question but that Henry was injured so seriously as to require hospitalization and confinement in his home for a period of more than two years.

It was duly established that defendant at the time of Henry's injury was operating as an employer subject to the compensation act and that Henry's brother Jacob was not. The commission found, on strength of supporting evidence, that Jacob was an independent contractor to and with defendant and that Henry was an employee of his brother at the time such injuries were sustained.

First: The initial question, fairly indicated above, is whether Henry is entitled to exact compensation from defendant under said section 10(a). Section 10(a) has remained in effect without amendment since 1943. It reads:

'Sec. 10. (a) Where any employer subject to the provisions of this act (in this section referred to as the principal), contracts with any other person (in this section referred to as the contractor), who is not subject to this act or who has not complied with the provisions of section 1 of part 4 and who does not become subject to this act or comply with the provisions of section 1 of part 4 prior to the date of the injury or death for which claim is made for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then, in the application of this act, reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed: Provided, That the term 'contractor's shall be deemed to include subcontractors in all cases where the principal gives permission that the work or any part thereof be performed under subcontract; * * *.' C.L.1948, § 411.10.

Plaintiff relies on Burt v. Munising Woodenware Co., 222 Mich. 699, 193 N.W. 895. Defendant relies on Roman v. Delta Broadcasting Company, 334 Mich. 669, 55 N.W.2d 147. We hold that Burt controls and that Roman is distinguishable for the same reasons as were assigned to Burt in Roman.

Here it is affirmatively shown that Jacob at the time his brother's injuries were sustained was not subject to the workmen's compensation act. Here, too, it is affirmatively shown that defendant is engaged in the business of storing and ratailing coal and that a necessary element of effective operation of that business is constant use and regular servicing of an overhead conveyor system. The latter was as much requisite to defendant's business operations as boiler inspection and repair became to the business operation of Munising Woodenware Company as shown in the Burt case. A different question would be presented had it been shown that Grand Rapids Fuel Company engaged Jacob to raze its conveyor system with intent of abandoning use thereof, and this should make it plain that Roman undoubtedly would have come to different end if, instead of a contract for razing of the radio tower, John Roman had contracted with Delta Broadcasting Company, say, to paint or repair that tower.

Our section 10(a) closely follows the English act. ¹ Generally, enactments so taken from England's lead are designed toward protection of employees of possibly irresponsible contractors through imposition of final liability on the actor who has it within his power upon engagement of an independent contractor to determine the latter's responsibility and to insist that the latter provide due protection for his employees. Such statutes are aimed additionally at forestalling evasion of the burden of industrial injury by those who might be tempted to subdivide their regular operations among contractors and subcontractors for the purpose of relegating employees of the latter to the uncertainty of protection afforded by smaller employers, many of whom fail to carry compensation insurance. This in substance is Professor Larson's summary of the purpose of the 'contractor-under' statutes. See Larson, 'Workmen's Compensation Law', Vol. I, § 49, commencing at page 723.

Occasionally the full import of a given judicial opinion is seen best when the contention dealt with therein is searchingly probed, and I turn upon that thought to quotation of the precise polemics of Munising Woodenware Company as disclosed in the Burt case, 222 Mich. at page 703, 193 N.W. at page 896:

"Unless the contractor in question has taken over some job which had been undertaken by the principal, or which normally or naturally would have been done by the principal himself, unless it thus assumes a part of the very business of the principal, the statute is not to apply. * * *

"In this case, however, the contract was not for the execution of any work undertaken by the Munising Woodenware Company. That corporation was engaged in the manufacture of household...