Pazan v. Unemployment Compensation Commission ( 1955 )

Dethmers, J.

Presented is the question of plaintiff’s liability as an employer for the year 1949 under the Michigan unemployment compensation act (OL 1948, § 421.1 et seq. [Stat Ann 1950 Rev § 17.501 et seq.]). The answer turns on whether certain owner-operators of trucks were plaintiff’s employees or independent contractors.

Plaintiff was in the trucking business, hauling goods for hire under Michigan public service commission certificates. He owned trucks which were operated by his employees. In addition, he leased from the owners trucks which were operated by them in furtherance of his business. The typical written lease provided that plaintiff should have complete control of the leased truck and assume all legal liabilities arising from its operation the same as 'though it were owned by him and that, if operated by the. owner, the latter .should be deemed to be plaintiff’s employee. The lease was cancelable by ‘either party, on 15 days’ notice. Under the arrangement the owner could, at his option, drive the truck himself or furnish a driver; and plaintiff paid the owner for every load hauled 75% of the gross tariff received for the haul. The lease was silent with respect to the other material details of the arrangement, but the understanding and practice followed was that plaintiff told the owners where to pick up freight and where to deliver it, but did not dictate routes to be followed, and the owners kept the trucks serviced, repaired and supplied with gasoline, - oil, tires and everything necessary to their operation at their own expense and at places or service stations of their own choosing. Plaintiff paid the 75% of the total tariff for a haul to the owner, sometimes by 1 check and sometimes by 2, the smaller of the 2 usually amounting to 20% or 25% of the total paid the owner and being reported as wages for social security purposes and social security and income tax deductions being made therefrom. Plaintiff carried workmen’s compensation insurance covering the owners and had a contract with a union under which they had certain privileges, including seniority rights as drivers over some employees driving plaintiff’s own equipment. Occasionally the owners leased their trucks to and hauled loads for others than plaintiff, and sometimes they refused to make hauls for plaintiff which they did not consider sufficiently lucrative. The owners performed no service for plaintiff other than driving their own trucks. The trucks bore signs indicating that they were operating in plaintiff’s business.

This case has come the route through determinations by the commission, referee and appeal board and is here on appeal from a circuit court judgment based on its holding that the owners were not plaintiff’s- employees under the act.

In defining “employment,” section 42(1) of the Michigan act in effect in 1949 (CL 1948, § 421.42 [Stat Ann 1950 Rev § 17.545]) read, in part:

“Service, including service in interstate commerce, performed for remuneration or under any contract of hire, written or oral, express or implied.”

Section 42(6) read, in part:

“Except as otherwise provided * * * the term ‘employment’ shall not include: * * *

“(n) Any service not included as ‘employment’ under the Federal unemployment tax act (secs. 1600-1611 of the internal revenue code), as amended.”'

In Bonifas-Gorman Lumber Co. v. Unemployment Compensation Commission, 313 Mich 363, the service involved, namely logging, was specifically exempt under the Michigan act unless included as employment under title 9 of the Federal social security act. With respect to that service, this Court said in Bonifas (p 369) that :

“Clearly, it was the intention of the legislature to exclude from the benefits of the statute persons rendering services of the character referred to (logging) unless such persons are entitled to be classed as employees under the social security act.”

The distinction between the situation in which the service is one expressly exempted under the State act unless included as employment under the Federal act, as in Bonifas, and a situation in which the service is one, so defendants claim here, that is included under the State act unless expressly exempted by the Federal act, scarcely seems controlling. Section 42(6) (n) speaks not merely in terms of exempting services which are expressly exempted under the Federal act, but of excluding services which, are not included as employment under the Federal act.

Is the service in question included as employment under the Federal act in effect in 1939 when section 42(6) (n) of the Michigan act was enacted? We think that question is answered in United States v. Silk (Harrison v. Greyvan Lines, Inc.), 331 US 704 (67 S Ct 1463, 91 L ed 1757). For similarity of facts with respect to the truck owner-operators in the instant case, and in the Silk and Greyvan Cases, see opinion therein. The Court there held the owner-operators to be independent contractors, not in employment under the Federal act.

Defendants point to factual differences between those cases and this and seek to distinguish on that ground. While it may be said that there are indicia of the employer-employee relationship in the case at bar not present in Silk and Greyvan, the converse is equally true. We do not think the factual differences controlling of the legal conclusion to be drawn. Decision in Silk and Greyvan appears to have turned on considerations expressed hy the court therein as follows (pp 713-716, 719):

“ ‘Employees’ included workers who were such as a matter of economic reality. * * * 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, the opportunity for profit from sound management, that marks these driver-owners as independent contractors.”

Application of the quoted language to the facts at bar impels us to the conclusion that the owner-operators were independent contractors whose service was not included as employment under the Federal act.

Affirmed, with costs to plaintiff.

Carr, C. J., and Butzel, Sharpe, Boyles, Reid, and Kelly, JJ., concurred with Dethmers, J. •