Allen v. Kendall Hardware Mill Supply Co. ( 1943 )

I do not agree that Allen was an employee of Fairbanks, Morse Company at the time of the accident. The undisputed evidence shows that he was still an employee of Kendall Hardware Mill Supply Company. The proofs established the following facts:

Allen was a full-time employee of the Kendall Hardware Company, as a general laborer. Kendall Hardware Company's general manager (Snyder) testified that he "assigned" Allen "to help on this pump installation * * * I sent him out to help on this pump installation." Kendall Hardware Company paid him for his day's work on the date of the accident. The pump that was being installed was one that had been sold by Snyder for the Kendall Hardware Company. It was not the property of Fairbanks, Morse Company as the department found. Allen was injured while helping to remove the pipe from the well. This pipe had been sold by Kendall Hardware Company, and Fairbanks, Morse Company had never owned the pipe, sold it, or had any duty to remove it. At the time of the accident, Allen "was assisting Mr. Camp." Mr. Camp was hired by Fairbanks, Morse Company by the hour for this particular job to try to make the pump work. On the day before the accident, Anderson (Fairbanks-Morse agent) had asked Camp "to go out there and see if I (Camp) could tell what was the matter with the pump." Camp worked at it the day prior to and for two or three weeks after the accident. Camp charged for the three weeks' time he spent, billed Fairbanks, Morse Company for it, Fairbanks, Morse Company paid the bill, and it was later paid by Kendall Hardware Company, as a charge-back from Fairbanks, Morse Company. Allen was paid directly by Kendall Hardware Company as its employee, not as Camp's employee. The bill contained several charges for a helper for Camp, but none for Allen as a helper.

The gist of the matter is, that this was a Fairbanks-Morse pump that did not work at the rated capacity, the manufacturer took on the responsibility of making it work or replacing it, and the Kendall Hardware Company, having sold the pump, furnished a helper in trying to make it work. Allen was under the general direction and control of Snyder for Kendall Hardware Company all the time, worked for that company every weekday from 7:00 a.m. to 6:00 p.m., including the day he was injured, at $15 per week, was told by Snyder where to go and what to do, up to the time of his death. Neither Camp nor Fairbanks, Morse Company hired Allen, selected him for the work, could tell him when to work, or discharge him. It is true that while Allen was helping Camp, he (Camp) told Allen what to do. On the day of the accident, Allen was under the immediate control of Camp, who testified:

"Q. And when he (Allen) came on the job what did you do so far as instructing him what to do or not to do?

"A. Well, I didn't really instruct him. I just told him what we had to do and we went ahead and done it; that was all."

However, Snyder (for Kendall Hardware Company) did not resign full control over Allen while acting as a helper for Camp. The relation of employer and employee was not suspended. Under our previous decisions, as a matter of law Allen was still the employee of Kendall Hardware Company. In Rockwell v. GrandTrunk Western R. Co., 253 Mich. 144, cited by my Brother SHARPE, the operator of the crane that caused plaintiff's injuries was the general servant of the Grand Trunk Western Railway Company, was selected by the railway company, paid by the railway company, could be discharged by the railway company whenever it pleased. He was held to be the servant of the railway company, although at the time of the accident his acts which resulted in the plaintiff's injuries were under the immediate direction of another. The railway company was held liable. In the above respects the railway company occupied the same position as Kendall Hardware Company in the instant case, where Allen was the general servant of the hardware company, selected by the hardware company, and could be discharged by the hardware company whenever it pleased. In the case at bar, as in the railway case, the mere fact that acts of the servant were under the immediate temporary direction of another does not establish that the servant was the employee of such other person.

"But to avoid liability the original master must resign full control of the servant for the time being. It is not sufficient that the servant is partially under the control of another. * * *

"If the servant remains subject to the general orders of the man who hires and pays him, he is still his servant, although specific directions may be given him by another person from time to time as to the details of the work and the manner of doing it." Rockwell v. Grand Trunk Western R. Co., supra.

In Powell v. Twin Drilling Co., 300 Mich. 566, this court recently held:

"To entitle plaintiff to compensation, he must have been in the employ of defendant at the time of the accident, under a contract of hire, express or implied. 2 Comp. Laws 1929, § 8413, as amended by Act No. 204, Pub. Acts 1937, and Act No. 107, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 8413, Stat. Ann. 1941 Cum. Supp. § 17.147). It is fundamental in this type of proceeding that before plaintiff can recover, the relationship of employer and employee must be admitted or proved. Lynch v. R.D. BakerConstruction Co., 297 Mich. 1."

The facts are undisputed, and hence the record presents no factual issue for determination — instead, the issue is as to the status of plaintiff as a matter of law. The finding of law of the department that Allen was an employee of Fairbanks, Morse Company at the time of the accident should be set aside, and the case should be remanded for entry of an order granting compensation against defendant Kendall Hardware Mill Supply Company and its insurer, with costs.

CHANDLER and NORTH, JJ., concurred with BOYLES, C.J.