White v. Searls & White Tree Service

231 N.W.2d 522, 60 Mich. App. 714, 1975 Mich. App. LEXIS 1488

• Court: Michigan Court of Appeals
• Decided: April 28, 1975
• Docket: Docket 20490
• Status: Published

Opinions

R. B. Burns, P. J.

Plaintiff, Betty White, appeals from a Workmen’s Compensation Appeal Board decision holding that her deceased husband, Clinton White, was not an employee of either defendant at the time of his death, and that plaintiff was not entitled to workmen’s compensation benefits. We affirm the board’s decision.

At the time of decedent White’s death, he and his working crew from defendant City Tree Service, a sole proprietorship owned by the decedent, were employed on a tree removal project undertaken by defendant Searls & White. The work was done pursuant to an oral agreement between the decedent and a Mr. Winsel Searls, a managing partner of Searls & White Tree Service. Both the deceased and Searls were in the habit of hiring the services of the other’s business firm whenever they began projects that exceeded the capacities of their individual tree-removal businesses. The board found that, as a sole proprietor, the deceased was not an employee of City Tree Service within the meaning of the then applicable act, MCLA 411.7(2); MSA 17.147(2). It also found that the deceased was an independent contractor with regard to Searls & White and, hence, not covered by the act. Scott v Alsar Co, 336 Mich 532; 58 NW2d 910 (1953).

Plaintiff contends that the deceased was not an independent contractor. As the board stated in its opinion, Michigan courts apply an economic reality test to such questions. The test is described in McKissic v Bodine, 42 Mich App 203; 201 NW2d 333 (1972). McKissic, supra, states seven factors which should be weighed by the board to further the purposes of the compensation act. First, what liability would the employer have incurred if he terminated the relationship? The board found there would have been breach of contract but no liability for unemployment compensation or seniority violations. Second, was the work performed an integral part of the employer’s business? The answer is yes; both decedent and Searls & White did the same work. Third, does the employee depend upon the job primarily for payment of his living expenses? The Searls & White project was but one of many performed by the deceased. Fourth, who provides the equipment and materials? Here, it was decedent only. Fifth, does the employee hold himself out to the public as one ready and able to perform such tasks? Undeniably, the decedent did. Sixth, is such work customarily performed by independent contractors? This is not clear, however, the board did note that plaintiff carried on decedent’s business in his absence, so the job was certainly not one that was performed by an individual. Seventh, what control did the employer exert over the employee? Here, decedent reported to work at his convenience and spent most of his time talking with Searls and supervising his own employees and equipment. The deceased paid his own employees, kept his own books, and maintained discipline. The board could have reasonably concluded, on the basis of such evidence, that the deceased acted as an independent contractor. The decision of the board will be overturned only when it is contrary to law or not supported by competent, material, and substantial evidence. Krol v City of Hamtramck, 54 Mich App ; 220 NW2d 743 (1974). Neither is the case here.

Affirmed.

R. M. Maher, J., concurred.