Opinion
Docket No. 60, Calendar No. 41,051.
Submitted June 7, 1940.
Decided October 7, 1940.
Appeal from Department of Labor and Industry. Submitted June 7, 1940. (Docket No. 60, Calendar No. 41,051.) Decided October 7, 1940.
Ernest A. Prange presented his claim against Grand Rapids Lumber Company, employer, and General Accident Fire Life Assurance Corporation, Limited, insurer, for compensation for accidental injury received while a salesman in defendant's employ. Award to plaintiff. Defendants appeal. Affirmed.
Martin D. Verdier, for plaintiff.
Kerr, Lacey Scroggie, for defendants.
Plaintiff was employed by defendant Grand Rapids Lumber Company about July 20, 1938, on answering an advertisement for salesmen for defendant's roofing division. The terms of the employment were that plaintiff was to receive a commission of 15 per cent. of the gross sales on any accepted orders turned in by him. He was given instructions as to measuring roofs and making estimates, provided with literature of the company, and called at their office several days a week to receive information regarding new prospects whose names might be furnished him. A foreman of defendant's company testified that, at the time of his injury, plaintiff was working under his supervision.
On August 10, 1938, plaintiff went to a farm for the purpose of figuring a new roof on a barn and, while walking through the barn looking at the roof, he stepped into a hole that was covered with hay and fractured his right leg. Although he had turned in several orders between July 20th and August 10th, he had not earned any commissions from the defendant company. He had previously covered the same territory for a former employer and had sold paint and other supplies to farmers.
Plaintiff's claim for compensation was denied by the deputy commissioner on the ground that he was an independent contractor rather than an employee. On appeal to the department, the award was reversed, the department holding that plaintiff was an employee, and the matter was remanded to the deputy commissioner to take testimony as to plaintiff's average weekly wage and as to whether or not he had recovered from his injury. Further testimony was taken which showed that plaintiff had earned an average wage of $25 per week, less expenses, at his former employment, and that he had not fully recovered from his injury. An order was entered granting plaintiff compensation at the minimum rate of $7 per week from August 10, 1938, until further order of the department. He was also allowed hospital and medical expenses by the earlier order.
Appellants contend that the department erred in finding that plaintiff was an employee and cite a number of authorities in which this court has reversed the decisions of the department on the question of whether or not plaintiffs, in such cases, were independent contractors.
In Lantz v. Schanz, 260 Mich. 547, the court held that the finding of the department that the deceased was an employee rather than an independent contractor was controlling because there was evidence to support such finding. In Mellaney v. Fordmont Hotel, 289 Mich. 384, 389, many of the authorities are collected, and the court there said:
" 'Whether or not the relation of master and servant exists in a given case, under oral contract, is often a question of fact, or of mixed law and fact, and is to be proved like any other question.' Tuttle v. Embury-Martin Lumber Co., 192 Mich. 385, 400 (Ann. Cas. 1918 C, 664)."
It was held in the Mellaney Case that the question was one of fact and that the court was bound by the finding of the department since there was testimony to support it.
A review of the record in the instant case requires the conclusion that the question here presented is one of fact. There is testimony to support the finding of the department.
Appellants further contend that the department lost jurisdiction when it entered an order awarding hospital and medical expenses and then returned the matter to the deputy commissioner for further testimony as to the average weekly wage and the period of disability. Such action on the part of the department did not constitute a rehearing. The situation is distinguishable from that in Guss v. Ford Motor Co., 275 Mich. 30, cited by appellants. The order here was not a final one. The department desired testimony on points which had not been covered at the initial hearing and, under the provisions of 2 Comp. Laws 1929, § 8450 (Stat. Ann. § 17.185), returned the matter to the deputy commissioner to take additional testimony.
It is also contended that there is no competent testimony in the record to sustain the award of $7 per week. An attempt was made to show the previous wages of plaintiff in order to determine his average daily wage. See 2 Comp. Laws 1929, § 8427 (Stat. Ann. § 17.161). However, this is unimportant because, in any event, the award could not have been less than the minimum of $7 per week, provided for by 2 Comp. Laws 1929, § 8425 (Stat. Ann. § 17.159). See Carothers v. City of Stanton, 257 Mich. 107. There, an award for the minimum of $7 per week was affirmed where plaintiff, as chief of a volunteer fire department, received a salary of only $25 per year.
The award of the department is affirmed, with costs to appellee.
SHARPE, BOYLES, CHANDLER, NORTH, McALLISTER, WIEST, and BUTZEL, JJ., concurred.