Opinion
Docket No. 63, Calendar No. 38,360.
Submitted July 7, 1935.
Decided September 9, 1935.
Appeal from Department of Labor and Industry. Submitted July 7, 1935. (Docket No. 63, Calendar No. 38,360.) Decided September 9, 1935.
Jennie F. Harper presented her claim against Edward Lowe and the estate of Susan Blodgett Lowe, alleged employers, and Indemnity Insurance Company of North America, insurer, for compensation for alleged accidental injury causing death of her husband, Alexander Harper, while in defendants' employ. Dismissed as to defendant insurance company. Award to plaintiff. Defendant employers appeal. Reversed.
Linsey, Shivel Phelps, for plaintiff.
Bishop Weaver and Butterfield, Keeney Amberg, for defendants.
Edward Lowe and estate of Susan Blodgett Lowe, his deceased wife, owned and operated two office buildings in Grand Rapids. In connection therewith, they accepted the workmen's compensation law and maintained insurance. Their application and insurance policy specifically referred to the location of the office buildings.
Edward Lowe occupies as a home, "Holmdene," just outside Grand Rapids. It is an estate of 67 acres, with a 40-room house and other buildings, upon which he employs labor, including household domestic servants, gardener and dairyman. The products of the estate are used personally, not sold, and it is not conducted for profit.
Alexander Harper was employed as a dairyman to tend the cows and care for the stable on the estate. Part of his duty was to be at the house one hour a day while the regular watchman was absent for meals or otherwise. He had angina pectoris for many years. On April 12, 1934, while milking a cow, he fell to the ground and died instantly. His widow filed application for compensation upon the claim that, while on the estate, Harper had slipped and fallen some 20 days before and the accident had caused his death.
Lowe personally had not accepted the provisions of the workmen's compensation act. No notices of acceptance were posted on the estate. No insurance on employees had been effected in connection with it.
At the hearing before the deputy commissioner, defendants and the insurance company appeared specially and challenged the jurisdiction of the department upon the ground that the title to Holmdene had been in Lowe and his wife by the entireties, upon her death in 1931 he became sole owner and sole operator and Harper was employed by Lowe, not by defendants. The motion to dismiss was supported by affidavit. The deputy dismissed the proceedings against the insurance company, refused to rule upon jurisdiction as to these defendants and proceeded with hearing on the merits. He refused award upon the ground that defendants were not subject to the compensation act in connection with the injury. Plaintiff appealed and the award of the deputy commissioner was reversed and compensation allowed.
The commission held, without any evidence to contradict the showing made on the motion or to support the finding, that defendants together were owners of Holmdene, that, when Mrs. Lowe died, her interest vested in her estate and that Harper was employed by both defendants. There being no evidence to sustain the finding, it being the general rule that husband and wife as grantees take by the entireties, and plaintiff having the burden of proof of showing employment by defendants, we must assume that Lowe was the sole owner and operator and Harper's employer.
The application for benefit of the workmen's compensation law made by defendants contains the following in the words of the statute, added to the original act by amendment (Act No. 113, Pub. Acts 1929), 2 Comp. Laws 1929, § 8412:
"That such employer accepts the provisions of this act for all his businesses, and to cover and protect all employees employed in any and all of his businesses, including all businesses in which he may engage and all employees he may employ while he remains under this act."
Plaintiff contends that "business" is to be given the broad construction of embracing anything about which a person is employed or any occupation in which he is engaged, even to the "business of life." She also wrests "all employees he may employ" from the context of businesses and contends that, upon acceptance of the act, the home employees also are covered by it. If the legislature so intended, it expressed itself poorly. The purpose of the act is to require industry to bear the burden of injury to employees. It expressly excepts household domestic servants and farm laborers. 2 Comp. Laws 1929, § 8408; Bates v. Shaffer, 216 Mich. 689; Shafer v. Parke, Davis Co., 192 Mich. 577. In ordinary parlance, "business" means a commercial and profit-seeking occupation.
In view of the repeated use of the word "businesses" in the amendment, we cannot conceive that the legislature intended to change the purpose of the act and destroy the exception. The conduct of a home is not a business within the meaning of the provision.
The right of an employee to compensation depends upon the kind of work he is employed to do. Shafer v. Parke, Davis Co., supra. Harper's work was not in connection with the business of the employer, was, strictly speaking, not that of a domestic household servant but was, in character, the work of a farm laborer. It did not change its character because for a short time each day his duties required him to guard the property against damage and trespassers. Such duty was not foreign to farm work.
In American Life Ins. Co. v. Balmer, 238 Mich. 580, it was held that the act extends to all the businesses of the accepting employer although the application and insurance policy may specify particular locations. The case is not controlling here. The "employer" who accepted the act consisted of the two defendants, jointly engaged in a common enterprise. Lowe had not accepted the act for his personal business. Plaintiff's contention that the acceptance extended to the private affairs of Lowe would result in the construction that acceptance of the act by a partnership or a voluntary association of persons would extend it to all the other "businesses" of all the individual members. Such construction is contrary to the provisions of the act, particularly 2 Comp. Laws 1929, § 8411 (2), which treat the employer, whether person, firm or corporation, as an entity. The complications and confusion which would result from plaintiff's construction would be too serious to permit its adoption in the absence of plain language.
Reversed.
POTTER, C.J., and NELSON SHARPE, NORTH, WIEST, BUTZEL, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred.