Allen v. Kendall Hardware Mill Supply Co.

9 N.W.2d 45, 305 Mich. 163, 1943 Mich. LEXIS 353

• Court: Michigan Supreme Court
• Decided: April 6, 1943
• Docket: Docket No. 31, Calendar No. 42,047.
• Status: Published

Opinions

Sharpe, J.

This is an appeal from tbe department of labor and industry. Plaintiffs are the widow and minor son of Leon Allen wbo sustained fatal injuries on May 20, 1941, while working on a water pump on tbe farm of Emmett Lee.

Tbe deceased was a regular employee of tbe Kendall Hardware Mill Supply Company at its store at Marshall, Michigan, receiving $15 a week for such employment. Prior to tbe above date, tbe Kendall Hardware Mill Supply Company sold Mr. Lee a pump which it bad previously purchased from tbe manufacturer, Fairbanks, Morse & Company. Tbe Kendall Hardware Mill Supply Company also sold Mr. Lee a tank and pipe with which Fairbanks, Morse & Company bad no connection. Mr. Lee installed the pump, but was unable to make it develop more than one half of its rated capacity. This fact was made known to Mr. Snyder, tbe manager of tbe Marshall branch of tbe hardware company, wbo in turn informed Mr. Anderson, a salesman of Fairbanks, Morse & Company, of tbe difficulty. Mr. Anderson contacted one Aubrey Camp and instructed him to go to tbe Lee farm and find out what was wrong with the pump. It was agreed that tbe hardware company would send a man out to tbe Lee farm to help Camp with tbe pump. Mr. Allen was chosen by tbe hardware company to act as a helper to Mr. Camp. Luring tbe progress of tbe work, Mr. Allen was fatally injured. 'A claim for compensation was filed by tbe widow and her minor son. An award was made in behalf of plaintiffs of compensation at the rate of $10 per week as well as other expenses. The department of labor and industry held that Fairbanks, Morse So Company was liable for such payments.

The principal question for determination is whether the relationship of master and servant existed between Kendall Hardware Mill Supply Company and Allen, or between Fairbanks, Morse So Company and Allen. As was said in Buskirk v. Ide, 302 Mich. 154, 165: ‘£ The ultimate test is: Whose is the work being done? * * * In determining whose work is being done, the question of the power to control the work is of great importance.” It is urged by the hardware company that it loaned Allen to Fairbanks, Morse- So Company as a helper on this particular job.

In Rockwell v. Grand Trunk Western Railway Co., 253 Mich. 144, 147, we said:

“It is a well-settled rule of law that when one person hires or lends his servant tb another for some particular work and resigns full control over him while performing that work, he ceases for the time to,be the servant of the original master and becomes the servant of the party to whom he is hired or lent. In determining whose servant he was the test is, who had the right to control him.”

In Janik v. Ford Motor Co., 180 Mich. 557, 561 (52 L. R. A. [N.S.] 294, Ann. Cas. 1916A, 669), we said:

“The rule is long settled that, a servant in the general employment of one person may also become the special servant of another, with all the mutual-rights and obligations of master and servant between them for the time of, and in relation to, the special service in which the servant is temporarily engaged. ’ ’ ”

The record shows that Emmett Lee, the prospective purchaser, contacted Anderson of Fairbanks, Morse & Company and took him out to his farm for the purpose of being advised by Anderson as to what kind of a pump to purchase; that Anderson advised Lee what type of Fairbanks, Morse & Company pump to use; that the pump recommended by Anderson was installed by Lee; that Fairbanks, Morse & Company was advised that the pump did not work satisfactorily; that Anderson hired Aubrey Camp to fix the pump; and that it was agreed that the hardware company would furnish a man to aid Camp in performing his work. It also appears that Camp was in charge of the work and Allen was his helper. Applying the rule announced by the above authorities, we find that Fairbanks, Morse & Company was in direct charge of the work upon the pump; and that Allen as a helper was under the supervision and control of Camp, its employee. Under such circumstances we find that Allen had temporarily ceased to be an employee of the hardware company. He was directed and controlled by Fairbanks, Morse & Company and under these circumstances was an employee of Fairbanks, Morse & Company.

We are in accord with the finding of the department of labor and industry:

“Thus we have a situation in which the Kendall Hardware Mill Supply' Company loaned one of its regular employees to the Fairbanks, Morse & Company and put him under the immediate control of its agent to work on equipment owned by them, as a result of which that employee was fatally injured.”

The right to control the loaned employee presents a question of fact which was resolved in favor of the Kendall Hardware Mill Supply Company. There is competent evidence to support the determination of the department of labor- and industry. Under such circumstances we may not disturb the finding so made. See 2 Comp. Laws 1929, § 8451 (Stat. Ann. § 17.186).

The award is affirmed, with costs to plaintiffs as against Fairbanks, Morse & Company.

Starr, "Wiest, Butzel, and Btjshnell, JJ., concurred with Sharpe, J.