Fowler v. Hamilton Moving & Storage Co.

Plaintiffs, Louise Fowler and her 2 minor children, are the widow and children of Henry Clayton Fowler who was killed in an accident resulting from a fall of a piano on March 3, 1947. Defendant Hamilton Moving Storage Company is a copartnership consisting of Marshall Ray Harper and Henry Clayton Fowler. At the time of the accident, Fowler was assisting in moving a piano for the moving company.

Plaintiffs filed an application for hearing and adjustment of claim with the department of labor and industry naming the moving company as decedent's employer. A hearing was held on June 4, 1947, at which time it was shown that Henry C. Fowler and one Marshall R. Harper were partners in the Hamilton Moving Storage Company; and that deceased was killed while engaged in work for the partnership.

An insurance policy covering employees of the partnership was introduced in evidence, a part of which reads as follows:

Estimated Rate per Total $100 of "CLASSIFICATION Annual Estimated OF OPERATIONS Remuneration Remuneration Premium

-------------------------------------------------------------------------- (Note: If more than one classification indicate each other by (b) (c) (d) etc.) -------------------------------------------------------------------------- 1. (a) Truckmen — N.O.C. — including drivers, chauffeurs and their helpers; terminal employees; stablemen; garagemen; blacksmiths; repairmen; riggers — (Storage warehouse employees to be separately rated)

# 7219 ......................... $2,000.00 $2.75 55.00 ------------------------------------------------------------------------- Marshall R. Harper 7219 ........ $2,000.00 2.75 55.00 ------------------------------------------------------------------------- Henry C. Fowler 7219 ........... $2,000.00 2.75 55.00 ------------------------------------------------------------------------- Minimum premium for this policy shall be ............. $51.00

Estimated advance premium ........................... $165.00

"Item 4. The foregoing enumeration and description of employees include all persons employed in the service of this employer in connection with the business operations above described to whom remuneration of any nature in consideration of service is paid, allowed or due together with an estimate for the policy period of all such remuneration. * * * The foregoing estimates of remuneration are offered for the purpose of computing the advance premium. The company shall be permitted to examine the books of this employer at any time during the policy period and any extension thereof and within one year after its final termination so far as they relate to the remuneration earned by any employee of this employer while the policy was in force."

At the hearing plaintiffs called Marshall R. Harper as a witness for cross-examination under the statute.^* He testified that he was one of the partners of the Hamilton Moving Storage Company; that he was present when Mr. Fowler was killed; the manner in which the accident happened; and that at that time deceased was working for the partnership. Defendant bonding company on cross-examination sought to examine the witness upon the question of what arrangements existed between the 2 partners as to compensation. Upon objection by plaintiffs that such testimony was equally within the knowledge of the deceased, the deputy commissioner excluded it as being in violation of 3 Comp. Laws 1929, § 14219^** (Stat. Ann. § 27.914).

The deputy commissioner awarded compensation of $23 per week for not to exceed 400 weeks based upon an average weekly wage of $38.46 at the time of Fowler's death, and $300 for funeral expenses. This award was affirmed on appeal to the department. Leave having been granted, defendants appeal.

In order that plaintiffs may recover an award under the workmen's compensation act it is incumbent upon them to prove that deceased, at the time of the fatal accident, was a working member of the partnership, receiving wages irrespective of profits; and that such relationship existed by reason of a contract of hire, express or implied. See 2 Comp. Laws 1929, § 8413, as last amended by Act No. 245, Pub. Acts 1943⁸²²⁴ (Comp. Laws Supp. 1945, § 8413, Stat. Ann. 1947 Cum. Supp. § 17.147).

Defendants urge that there was no evidence to establish the jurisdiction of the department as the plaintiffs failed to prove that deceased was receiving wages irrespective of profits.

The department based its findings that deceased was a working member of the partnership receiving wages irrespective of profits upon the statutory provisions of the insurance contract and the declaration of the insured made pursuant' thereto; and said:

"The only evidence, therefore, that is before us on the question of whether or not the deceased was a working member of the partnership receiving wages irrespective of profits is the declaration to that effect in the insurance contract entered into by the defendant partnership and the defendant insurer. We believe this declaration is in effect a duly executed and written admission against interest on the part of the defendants herein and that it is competent evidence in this case."

The statutory provisions, made a part of the standard workmen's compensation policy, read in part as follows:

"(e) That it (insurer) hereby assumes all obligations imposed upon the said employer by his acceptance of the Michigan workmen's compensation law, as far as the payment of compensation, death benefits, or for medical, surgical or hospital care or medicines is concerned. * * *

"If this employer is a partnership its working members who receive wages irrespective of profits and who have not rejected such compensation act in the manner therein specified shall be included in this policy and in the estimate and final adjustment of remuneration as provided at a fixed annual remuneration of $2,000 for each such working member. The name of each such working member shall be stated in the declarations forming a part of this policy."

The "declarations" in the policy made by the partners were statements by the partnership. They were made pursuant to the quoted provisions of the policy and were an admission that on the date of the execution of the policy the partners were working members of the partnership receiving wages irrespective of profits and, as such, were admissible in evidence against the partnership. See 4 Wigmore on Evidence (3d Ed.), § 1048.

In 5 Callaghan, Michigan Pleading and Practice, § 36,498, it is stated:

"An admission against interest is a voluntary statement of a material fact or an equivalent act by a party to the action in which it is offered, or by another on his behalf, which contradicts some position assumed by him in that action, and which is substantive evidence for the adverse party."

In our opinion the statements were made by the partnership as the employer of deceased and were admissible against it in an action based upon deceased's employment. The admission above referred to is subject to rebuttal, but in the absence of a contrary showing it provides competent evidence of the relationship of the parties on the date the policy was executed.

A presumption may not be carried to absurd lengths, however, in the case at bar the insurance policy was issued January 17, 1947, and the accident occurred on March 3, 1947, not quite 2 months later. A presumption that the business arrangements of the parties remained the same for this length of time would not be arbitrary, absurd or unwarranted.

In 20 Am. Jur. p. 205, it is said:

"It is well established that when the existence of a person, a personal relation, or a state of things is once established by proof, the law presumes that the person, relation, or state of things continues to exist as before, until the contrary is shown, or until a different presumption is raised from the nature of the subject in question."

See, also, Blank v. Township of Livonia, 79 Mich. 1, andSanford v. Millikin, 144 Mich. 311.

Under this record a question of fact was presented for the determination of the department of labor and industry. In making this determination it was permissible for the department to draw inferences from the one piece of evidence before it. Glenn v.McDonald Dairy Co., 270 Mich. 346, and Salmi v. New Era LifeAssociation, 276 Mich. 457. Such determination fortified by competent evidence is binding upon us.

Defendants also urge that the department erred in failing to hold that plaintiffs had waived the benefits of 3 Comp. Laws 1929, § 14219, as to matters equally within the knowledge of deceased, by their examination of the witness Harper. It is to be noted that plaintiffs' examination was confined to a showing that the witness was a partner of the deceased; and that deceased was killed while occupied in the business of the partnership. The matters upon which defendants sought cross-examination related to the details of the partnership and whether there was a contract of employment between the individual partners and the partnership. The evidence sought to be brought out by the defendants was equally within the knowledge of the deceased and prohibited by the statute in question. The cross-examination that defendants were entitled to was limited to the subject matter brought out by plaintiffs on direct examination. See Gacesa v.Consumers Power Co., 220 Mich. 338 (24 A.L.R. 675). It was not error on the part of the deputy commissioner to reject the evidence sought to be brought out by defendants' counsel, as such evidence was clearly within the statutory prohibition.

The award should be affirmed, with costs to plaintiffs.

^* 4 Comp. Laws 1948, § 617.66 (Stat. Ann. § 27.915). — REPORTER.

^** 4 Comp. Laws 1948, § 617.65. — REPORTER.

⁸²²⁴ 3 Comp. Laws 1948, § 411.7. — REPORTER.