Williams v. Lang

273 N.W.2d 448, 404 Mich. 639, 1979 Mich. LEXIS 424

• Court: Michigan Supreme Court
• Decided: January 5, 1979
• Docket: 59443, (Calendar No. 3)
• Status: Published

Opinions

Levin, J.

It has not been determined whether Bobby V. Williams was an employee of Hansell Lang, doing business as Lang’s Gulf Service, and therefore we cannot reach the question on which leave to appeal was granted of whether Gulf Oil Company or Bole Oil Company, a Gulf distributor, is a statutory employer obliged to pay compensation because of their relationship with Lang who was not insured and had not otherwise complied with the workers’ compensation act.¹

We do not read the opinion or order of the Worker’s Compensation Appeal Board as a finding or determination that there was insufficient evidence that Williams was an employee of Lang. Rather, it left that issue undecided. We remand to the WCAB for a finding on that issue, retaining jurisdiction.

Williams was severely injured while working out of Lang’s service station. He claimed that he was employed by Lang, who had disappeared and was not available to give testimony, and that Bole and Gulf were statutory employers required to pay him compensation because, while he was so employed by Lang, he was engaged in the execution of work for one or both contracted out by them to Lang. Alternatively, he claimed he was employed by D. C. Gregory of Dewey’s Automatic Transmission.

The referee and WCAB view of the facts and case law was that Bole and Gulf were not statutory employers. They also concluded that there was insufficient evidence that Dewey’s Automatic Transmission, individually or in partnership with Lang, had employed Williams.

While the referee found that the testimony of Williams’ wife did not "fill the void” and that he could not "determine the relationship between Lang and” Williams,² the WCAB did not in terms adopt that finding.³ The statements in the controlling WCAB opinion that "there is insufficient evidence from which to draw reasonable inferences” and that the "evidence before us is insufficient for the drawing of even reasonable inferences much less is it sufficient for such findings [emphasis supplied]” are in the context of whether Dewey’s was responsible as an employer, not whether Lang was so responsible.⁴

In a word, while the WCAB adopted the referee’s conclusions that the cause should be dismissed as to Bole and Gulf with prejudice and as to Lang and Dewey’s without prejudice,⁵ it does not appear to have adopted the referee’s finding that the relationship between Lang and Williams could not be determined.

The controlling WCAB opinion made no reference whatsoever to any of the evidence concerning the relationship between Williams and Lang.⁶ It, therefore, does not appear that the WCAB considered the evidence bearing on their relationship or made any determination as to its sufficiency or a finding in that regard.

The WCAB’s failure to find whether Williams was an employee of Lang is understandable in light of its conclusion that Bole and Gulf were not responsible as statutory employers. Having so concluded and Lang being uninsured and absent, the WCAB apparently saw no need to go on to decide whether Williams was an employee of Lang. We often similarly avoid decision regarding questions, factual and legal, that no longer appear pertinent to the dispute.

The minority, two of the five sitting members of the WCAB, indicated that they were inclined to find that Williams was employed by Lang.⁷ The testimony of Williams’ wife as well as of the amnesiac Williams lends support to such a finding. Also, there is some corroborative testimony of other witnesses.

We granted leave to appeal to consider whether Bole or Gulf, or both, are statutory employers, i.e., whether Lang, who sold Gulf products under the name "Gulf’, had contracted "for the execution” "of the whole or any part of any work undertaken by” Bole or Gulf so that one or both are liable to Williams as a person "employed in the execution of the work”. Our grant of leave indicates that we may take a view of the law different than reflected in the decision of the WCAB. Therefore, Bole or Gulf may be statutory employers liable to pay compensation to Williams if it were determined that Lang had employed him.

Since the question whether Williams is an employee of Lang may be determinative, and there is evidence from which the WCAB could find that he was, and it does not appear that the WCAB decided that the evidence is insufficient to support such a determination, we vacate the order of the WCAB and remand to it for further findings, retaining jurisdiction.

Kavanagh, C.J., and Williams and Blair Moody, Jr., JJ., concurred with Levin, J.

1 1948 CL 411.10; now MCL 418.171; MSA 17.237(171).

2 The referee had further found that Williams "by reason of his injury, has lost his memory of events preceding the injury. The wife’s testimony does not fill the void. There is no way that I can determine the relationship between Lang and the plaintiff”.

The referee indicated that while Dewey had testified, he was not wholly satisfied. "The only persons who could rebut his testimony are Lang and [Williams], We can’t excuse Lang but [Williams] is the one who would be prejudiced by final action.”

The referee decided that the appropriate course of action was to dismiss the cause against Bole and Gulf on the ground that they were not responsible as statutory employers, but to qualify the dismissals as to Lang and Dewey’s as without prejudice, thereby it appears, seeking to preserve to Williams an opportunity to reassert claims against them should he obtain further evidence. The WCAB agreed with that assessment.

3 The referee’s finding was quoted by the WCAB, but in terms and context that was a recital of the background, not a decision on the merits. The affirmance of the referee’s result and decision does not constitute an adoption of his findings. In the instant case two of the five members indicated that while they were not prepared to find that Williams was an employee of Lang, they were inclined on the evidence at hand to so conclude. The majority did not advert at all to what could prove to be the critical factual issue.

4 The controlling WCAB opinion stated:

"I respectfully submit that 'at most’ much more could be found than that 'plaintiff may have been the employee of Hansell Lang’. The referee, with sufficient evidence before him, made a determination that neither Gulf nor Bole have any responsibility to plaintiff. I agree with this determination and would affirm it. However, with an amnesic plaintiff, a missing defendant who happens to be a material witness, and a material witness who is also a defendant but whose testimony is totally self-contradictory (Member Oldstrom calls it 'not unsurprisingly vague’ yet bases crucial findings upon it [see testimony recorded on page 8 of the transcript of Mr. Gregory’s deposition taken February 9, 1972, and his testimony recorded on pages 228-29 of the transcript of the September 19, 1972, hearing]). We are confronted not only with that which I in confidence call a unique situation but we are also in a situation in which there is insufficient evidence from which to draw reasonable inferences.”

"In the instant case, such an assumption would be contra the express words of the referee, words other than 'without prejudice’ by which he has conveyed his intent to determine only the liability of Gulf and Bole. In my opinion we too should clearly circumscribe the area to which our determination is confined. Other than consideration of the evidence relating to plaintiff’s claims against Gulf and Bole, I have made no additional evaluation except to satisfy myself of the insufficiency of evidence from which to draw reasonable inferences. As I would not make a determination that Dewey’s Automatic Transmission did not employ plaintiff, as Member Oldstrom has determined, so I would not make a determination that Dewey’s Automatic Transmission did employe plaintiff, as Gulf urges at appeal. The evidence before us is insufficient for the drawing of even reasonable inferences much less is it sufficient for such findings.”

5 See fn 2, supra.

6 The troublesome question for the WCAB was whether Dewey’s, apparently insured, was Williams employer. The difference between the majority and minority of the WCAB concerned the treatment of the case against Dewey’s, not the case against the absent and uninsured Lang. Both the majority and minority opinions adverted to the evidence concerning the relationship with Dewey’s. The majority made its own explicit finding, implicit m the referee’s findings, that the record was insufficient to permit a finding that Dewey’s was an employer of Williams.

7 The minority opinion states:

“What slight evidence there is tends to indicate that plaintiff was an employee of Lang who handled all business affairs at the station, including making weekly payments of wages to plaintiff. Note should be made of the fact that Lang also hired somebody to help plaintiff in the transmission end as Robert Lang testified. Apparently, Hansell Lang even made deductions from plaintiff’s pay based upon the rates of deduction at Aamco Transmission when he worked for Aamco as an employee. Further, at one point during the summer, plaintiff quit the Lang operation for three weeks and then returned. This type of behavior is reasonably to be expected from employees and not from partners. From the evidence, we conclude that the relationship of master-servant existed between Lang and plaintiff for the reasons that Lang seems to have been responsible for the selection of plaintiff, he paid plaintiff wages, retained the power to dismiss the plaintiff (which is inferred from plaintiff’s termination of employment with Lang in the summer and Lang’s hiring of a person to help plaintiff) and controlled plaintiffs conduct which appears from Lang’s involvement with Pierce in negotiating the contract for the transmission repair with him. 53 Am Jur 2d, Master and Servant, § 1.”

"In summary, we conclude as follows: Plaintiff has been injured and is without remedy under the act until Lang can be found. Lang and plaintiff were not partners in the transmission business and neither Bole, Gulf, nor D. C. Gregory (Dewey’s Automatic Transmission) were actual or statutory employers of plaintiff under MCL 411.10; MSA 17.150. At most, plaintiff may have been the employee of Hansell Lang. However, such determination must await further proceedings once Lang is found. Likewise, the question of whether Lang was subject to the act must await further proceedings upon his appearance.”