R. H. McManus Co. v. Employment Security Commission

Kelly, J. Plaintiff is engaged in the business of excavation for underground piping or tunneling, requiring the hauling of dirt from the excavations. Plaintiff does not maintain its own trucks, and contracts with others to haul away the dirt. The trucks so used are not owned by the plaintiff. The truck owners carry their own insurance and the owners' names are printed on the side of the trucks. The owners of the trucks and their drivers were not carried on plaintiff’s payroll, and withholding, social — 169 — security, or any other form of taxes, were’not deducted from the truckers’ charges. Plaintiff paid $4.15 ah hour to the truck owners and the driver received from the owner approximately $2.15 of this amount. The arrangement between plaintiff and the truckers was indefinite and there was testimony establishing same: “Whenever they would need us, we would stay there. We would work 2 or 3 days in a row. Otherwise, we would go out and work 1 day, maybe a day and a half or 2 days. It was indefinite.” In regard to working hours, it was testified : “As a rule, you generally consider an 8-hour day, or you start at 8 and then if you are needed for 8 hours, you stay there. If they happen to finish up the job by noon, you go home at noon and you get a half day.” The agreement between plaintiff and the truck owners gave to either party the right to terminate the working arrangement at any time and the-number of loads would differ from day to day due to problems that would arise in excavating. The truckers had nothing to do with excavating and the plaintiff operated its own loading cranes. The truckers would convey the load and dump it at a place designated by the plaintiff. The Michigan employment security commission determined that: (1) The arrangement between plaintiff and the truckers constituted employment requiring contributions under the Michigan employment security act;* (2) fifty per cent of the payment made to the truck owners could be deducted as rental allowance; and (3) truck owners registered as em — 170 — ployers under the act in their own right would be exempt from the ruling. An appeal was taken by plaintiff and the circuit court of Wayne county reversed the commission’s decision and determination. CLS 1954, §421.42 (Stat Ann 1953 Cum Supp § 17.545), provides: “Subject to the other provisions of this section ‘employment’ means service, including service in interstate commerce, performed for remuneration or under any contract of hire, written or oral, express or implied.” Appellant insists that the test to be applied is whether the drivers were paid for service or product and contends they were paid for service because they were hired for indefinite periods of time and were subject to supervision and control of plaintiff. Sustaining this contention appellant calls attention to the following cases involving the workmen’s compensation law as to whether the injured party was an independent contractor or employee: Tuttle v. Embury-Martin Lumber Co., 192 Mich 385 (Ann Cas 1918 C, 664); Van Simaeys v. George R. Cook Co., 201 Mich 540; Conrad v. Cummer-Diggins Co., 224 Mich 414; Dennis v. Sinclair Lumber & Fuel Co., 242 Mich 89. In Nordman v. Calhoun, 332 Mich 460, 465, this Court quoted with approval Acme Messenger Service Co. v. Unemployment Compensation Commission, 306 Mich 704, wherein we said (p 709): “ ‘Neither the common-law rules as to the relation of master and servant, nor the “independent contractor” rules as applied to the workmen’s compensation law or the licensing of carriers of passengers or goods for hire, will be considered to provide the controlling test as to whether one is “in the employment of” another, under the unemployment compensation — 171 — act. The statutory provisions in the act must be held to supply the test.’ ” That each case must be determined on its own facts was established in Dennis v. Sinclair Lumber & Fuel Co., supra, when this Court stated (p 91): “The Michigan workmen’s compensation statute applies to employer and employee in the sense of such relation at common law, and not at all to the relation of an independent contractor to a job or jobs. An abstract definition of what constitutes an independent contractor is useful in the test of whether the relation in a case is such or that of an employee, but is seldom decisive, for each case has its own facts and the facts call for applicable law.” In Nordman v. Calhoun, supra, this Court held that part time janitor work was a “service” that constituted employment. That case was commented upon in Michigan Bulb Co. v. Unemployment Compensation Commission, 337 Mich 292. In the latter case, because its business was seasonal, the company entered into a working arrangement with individuals who took lists of names to their homes and typed same onto advertising literature. Deciding that those who did the typing were not employees, we said (pp 295, 296): “In Nordman v. Calhoun, 332 Mich 460, stressed by defendant and relied upon by the lower court, which involved a period after the 1943 amendment, we said (p 466): “ Tn our opinion the statutory definition of “employment” as provided in section 42(1) of the act is clear and unambiguous. It means service performed for remuneration or under an oral or written contract for hire. The only issue in the case at bar is to determine whether Date Scofield was an employee or an independent contractor.’ “This indicates that there still may be an independent contractor relationship not subject to the — 172 — act. How it can exist without the element of service for remuneration or under an oral or written contract for hire is not elucidated. The gist of the opinion is that when service is performed for remuneration, there is employment subject to the act. “Was service performed for remuneration in the instant case? We think not. Rather, a finished product was delivered to plaintiff for which it paid a price. This case is similar to and ruled by Bert Baker, Inc., v. Ryce, 301 Mich 84, in the following respects: (1) Plaintiff did not contract for personal services, but only for results; (2) the employer-employee relationship did not result from the mere fact that plaintiff furnished the materials on which the typists worked or checked the typewritten materials for errors and advised the typists concerning the same, or furnished to others for a consideration some of the completed, typewritten materials.” We quote with approval the following from 27 Am Jur, Independent Contractors, § 7, pp 488, 489: “As a practical proposition, every contract for work to be done reserves to the employer a certain degree of control, at least to enable him to see that the contract is performed according to specifications. The employer may exercise a limited control over the work without rendering the employee a mere servant, for a relation of master and servant is not inferable from a reservation of powers which do not deprive the contractor of his right to do the work according to his own initiative, so long as he does it in accordance with the contract. The control of the work reserved in the employer which effects a master-servant relationship is control of the • means and manner of performance of the work, as well as-of the result; an independent contractor relationship exists where the person doing the work is subject to the will of the employer only as to the result, but not as to the means or manner of accomplishment.” — 173 — In Nordman v. Calhoun, supra, we commented upon the purpose of the act as follows (p 465): “In the case at bar we are dealing with the administration of a public act designed to benefit a class and society as a whole by cushioning the effect of unemployment.” We agree with appellee’s contention that: “The purpose of the tax is to protect the employee in case of a layoff. What utter chaos would exist if, in the case of unemployment, these truckers made application for unemployment compensation insurance from every customer for whom they had worked.” The United States supreme court made the following pertinent observation in United States v. Silk, 331 US 704, 714-719 ( 67 S Ct 1463, 91 L ed 1757): “The taxpayer must be an ‘employer’ and the man who receives wages an ‘employee.’ * * * Contracts, however ‘skilfully devised,’ Lucas v. Earl, 281 US 111, 115 (50 S Ct 241, 74 L ed 731), should not be permitted to shift tax liability as definitely fixed by the statutes. * * * The courts will find that degrees of control, opportunities for profit or loss, investment in facilities, permanency of relation and skill required in the claimed independent operation are important for decision. No one is controlling nor is the list complete. * * * The truckmen hire their own assistants, own their trucks, pay their own expenses, with minor exceptions, and depend upon their own initiative, judgment and energy for a large part of their success. * * * Where the arrangements leave the driver-owners so much responsibility for investment and management as here, they must be held to be independent contractors. These driver-owners are small businessmen. They own their own trucks. They hire their own helpers. In one instance they haul for a single business, in the other for any customer. The distinction, though important, is not controlling. It is the total situation, including the risk undertaken, the control exercised, — 174 — the opportunity for profit from sound management, that marks these driver-owners as independent contractors.” It is difficult to understand the commission’s ruling excluding all truck owners who paid, on their own account, the unemployment tax to the commission. These exempted truck owners were subject to the same supervision and control by the plaintiff as were the truck owners not exempted by the commission. The statutory test must be determined by considering the relationship existing between the truck owners and the plaintiff and not the relationship existing between the truck owners and the commission. Judgment affirmed. No costs, a public question being involved. Dethmers, C. J., and Reid, Boyles, and Carr, JJ., concurred with Kelly, J. Footnotes [*] CL 1948 and CLS 1954, §421.1 et seq. (Stat Ann 1950 Rev and Stat Ann 1953 Cum Supp § 17.501 et seq.).