Nichol v. Billot

263 N.W.2d 345, 80 Mich. App. 263, 1977 Mich. App. LEXIS 1281

• Court: Michigan Court of Appeals
• Decided: December 8, 1977
• Docket: Docket 29607
• Status: Published

Opinions

Beasley, P. J.

On August 9,1971, during construction of additional sites at a Sandusky trailer park, plaintiffs decedent, a courageous, 70-year-old retiree, was crushed to death when the wall of a trench, in which he was attaching a sewer pipe to an existing septic tank, collapsed.

Plaintiff seeks damages for wrongful death from defendant, the excavator who dug the trench which was more than nine feet deep, on the theory that defendant was an independent contractor and that he negligently failed to slope and shore the walls of the trench as required under accepted safety standards. Plaintiffs decedent, who resided in the trailer park, was employed on a part-time basis by the owner of the trailer park.* ¹

Defendant denied liability claiming that, as a co-employee of the trailer park owner, he was immune from liability to plaintiff by virtue of the provisions of the workmen’s compensation statute,² and that, even if not immune, he was not negligent and that plaintiffs decedent was guilty of contributory negligence.

On November 10, 1972, shortly after suit was commenced, defendant moved for summary judgment, again claiming that he, defendant, was an employee of and under the control of the owner of the trailer park who acted through an "on-site” supervising manager,³ that he was hired to do some excavating on an hourly rate, that he was not and could not be liable for damages arising from the death of plaintiffs decedent because the provisions of the workmen’s compensation law precluded it, and that plaintiff should look to his employer for workmen’s compensation benefits.

Plaintiff answered defendant’s motion by claiming there were issues of fact which could not be decided by the trial judge, but which would have to go to the jury. Plaintiff filed a memorandum brief, in which the conclusion is:

"Inasmuch as there is a conflict in the evidence, as indicated by the affidavit and depositions and inasmuch as the conflict presents a question of fact for the jury, the issue of whether or not the arrangement between the Billot Excavating Company and Thomas Boyle was that of employer-employee, or of an independent contractor, cannot be determined by the Court on the Motion for Summary Judgment, and the Motion for Summary Judgment must, therefore, be denied.” (Emphasis added.) Plaintiff’s brief, dated January 2, 1974.

Eventually, on January 15, 1974, the then trial judge held with plaintiff and denied defendant’s motion for summary judgment, holding the issue of whether defendant was an independent contractor or an employee of the trailer park owner was one of fact, depending upon the degree of control that the manager of the trailer park exercised over defendant and, therefore, was for a jury and not a judge.

Subsequently, after completion of discovery and pre-trial conference, defendant filed another motion for summary judgment, which was also denied.

In a three-day trial in March, 1976, a jury received all the issues, including the independent contractor-co-employee one, and found no cause of action in favor of defendant.

On appeal, plaintiff raises various issues, the first of which is that it was error to deny plaintiff’s motion to strike defendant’s affirmative defense that plaintiffs claim was barred under the workmen’s compensation act because plaintiff’s decedent and defendant were co-employees of the trailer park owner.

Plaintiffs motion was made after all the proofs were in and both sides had rested. The motion rested upon the following assumptions:

1) that there were no issues of fact,

2) that the question was one of law for the judge to decide, and

3) that the "economic reality” test rather than the "control” test, was the correct measure to be applied in deciding the motion.

Defendant denied each assumption.

At this point, with respect to the first two assumptions, both sides had switched from their earlier positions taken in connection with defendant’s first motion for summary judgment.

Thus, on appeal, plaintiff takes an inconsistent position to that which he urged upon the trial court prior to trial. It can be argued that plaintiff has waived his alleged right to have the trial judge decide whether defendant was an employee of the trailer park owner by urging the trial judge to submit this question to the jury in his above quoted memorandum brief in response to defendant’s motion for summary judgment. It can also be argued that by waiting until all the proofs were introduced before switching positions and moving the trial judge to rule as a matter of law that defendant was such an employee and, thus, to strike that affirmative defense, that plaintiff waived his right by delaying too long.

However, apart from this matter of possible waiver, were there issues of fact to be decided preliminary to disposition of the question of whether defendant was an employee of the trailer park owner? Some indication that there were such issues is the fact that plaintiff and defendant adopt diametrically different versions of the alleged facts. For example, plaintiff claims that defendant was an independent contractor who had a duty to comply with the statutory safety standards, while defendant claims that the trailer park manager exercised complete control over both plaintiff’s decedent and defendant, including where the trench would be located, how defendant would dig, i.e., size of bucket, and the depth, size and width of the trench.⁴ Often such questions are mixed questions of law and fact. Here the record supports a finding that there were issues of fact. Therefore, we decline to find error in the trial judge’s conclusion that there were issues of fact involved in deciding whether defendant was an employee of the trailer park owner and that the mixed questions of law and fact could be submitted to the jury under proper instructions.⁵

The next issue has to do with whether to apply the "control” test or the "economic reality” test in instructing the jury as to the correct measure for deciding whether defendant was an employee of the trailer park owner or an independent contractor. In Michigan tort cases, the traditional test for deciding whether an employer-employee relationship or an employer-independent contractor relationship existed in a particular situation is the extent of the employer’s right to control whether exercised or not.⁶

Since 1959 in Michigan workmen’s compensation cases, the test of whether an employer-employee relationship exists is that of economic reality.⁷ This test includes some eight factors or guides, one of which is control.⁸

By way of affirmative defense, defendant claims to be an employee of the trailer park owner under control of the on-the-job manager. Defendant claims that since this is a tort case, the control test applies.⁹ He concludes he is immune from claim by plaintiff under the co-employee exclusion of the workmen’s compensation statute.

Plaintiff says the trial court erred in looking to the control test. It is plaintiff’s position that since defendant seeks to avail himself of the protection of the workmen’s compensation statute, the economic reality test must and does apply.

We do not believe that the control test has been overruled and replaced in tort cases.¹⁰ This is a tort case. The mere fact that defendant seeks to avail himself of the co-employee immunity from suit provision of the workmen’s compensation statute does not mean that the economic reality test, whose purpose is to extend workmen’s compensation benefits to greater numbers, must be applied. Consequently, we decline to find error in the refusal to apply the economic reality test.

Plaintiff also challenges the jury instructions. Taken as a whole, the trial court’s instruction to the jury was not reversibly erroneous. There was sufficient evidence to justify instructing the jury regarding the possible contributory negligence of plaintiff’s decedent.¹¹

Plaintiff’s other claims of error are without merit.

Affirmed, with costs.

J. R. McDonald, J., concurred.

1 Plaiiitiif successfully claimed workmen’s compensation benefits for wrongful death from his employer who owned the trailer park and who had compensated plaintiffs decedent for work done by him by applying his wages against rent for space in the trailer park.

2 Now known as Worker’s Disability Compensation Act; see, MCLA 418.161(1) and 418.827(1); MSA 17.237(161X1) and 17.237(827X1).

3 The on-site supervising manager was the previous owner of the trailer park.

4 We point out that while a person may ordinarily hold himself out as an independent contractor, he may be an employee under all the circumstances of a particular job.

5 Bonin v Gralewicz, 378 Mich 521; 146 NW2d 647 (1966), Ray v Transamerica Insurance Co, 46 Mich App 647; 208 NW2d 610 (1973).

6 Dennis v Sinclair Lumber & Fuel Co, 242 Mich 89; 218 NW 781 (1928), Gall v Detroit Journal Co, 191 Mich 405; 158 NW 36 (1916),

7 Tata v Muskovitz, 354 Mich 695, 699; 94 NW2d 71 (1959):

"It is time now to complete the cycle of departure from and return to all of the measures by which, under the clear weight of authority in this country, the relationship of employer and employee is rightfully identified for compensatory purposes. I move, then, with sight aimed at definite settlement of the steadily recurring question the parties — in the light of the quoted and adopted finding of facts — have stated and counterstated, that we now establish Mr. Justice Smith’s dissenting opinion in Powell v Employment Security Commission, 345 Mich 455, 462 [75 NW2d 874 (1956)], as proper guide to relevant interpretation of the workmen’s compensation law.” (Emphasis in original.)

8 McKissic v Bodine, 42 Mich App 203; 201 NW2d 333 (1972), Powell v Employment Security Commission, supra, dissenting opinion cited in Tata, supra.

9 Sliter v Cobb, 388 Mich 202; 200 NW2d 67 (1972), reversing 36 Mich App 471; 194 NW2d 75 (1971).

10 Sliter v Cobb, supra; the Supreme Court did not overrule that part of the Court of Appeals decision which declined to replace the control test with the economic reality test in tort cases.

11 Funk v General Motors Corp, 392 Mich 91, 113; 220 NW2d 641 (1974).