From Casetext: Smarter Legal Research

Roman v. Delta Broadcasting Co.

Supreme Court of Michigan
Oct 6, 1952
334 Mich. 669 (Mich. 1952)

Summary

In Roman v. Delta Broadcasting Company, 334 Mich. 669, the Court, citing prior decisions, indicated the test to be applied in determining the application of part 1, § 10.

Summary of this case from Karvonen v. Stankovich

Opinion

Docket No. 78, Calendar No. 45,478.

Decided October 6, 1952.

Appeal from Workmen's Compensation Commission. Submitted June 24, 1952. (Docket No. 78, Calender No. 45,478.) Decided October 6, 1952.

Valeda Roman and Gladys Shea, guardian of James Roman, a minor, presented their claim for compensation, arising from death of William Roman, against Delta Broadcasting Company and Employers Mutual Liability Insurance Company. Award to defendants. Plaintiffs appeal. Affirmed.

Ray Derham and L.J. Archambeau, for plaintiffs.

Burney C. Veum, for defendants.


Plaintiffs appeal from an award of the workmen's compensation commission denying compensation.

While there is support in the record for defendants' claim that plaintiffs' decedent and his brother, John, were partners engaged as independent contractors in doing for defendant broadcasting company, hereinafter called defendant, the job on which decedent was accidently injured and killed, nevertheless, after excluding matters equally within the knowledge of the deceased, the commission made a finding of fact, supported by some competent evidence, that John entered into a contract with defendant to take down its radio tower for $200 and that he hired decedent to assist him in the work. The commission found that defendant had no right to and had exercised no control over decedent. Accordingly, it held: (1) That decedent was not the employee of defendant, but of his brother, John; (2) that John was an independent contractor rather than defendant's subcontractor; and, therefore, (3) that defendant was not liable for compensation.

See CL 1948, § 617.65 (Stat Ann § 27.914). — REPORTER.

Plaintiffs claim they are entitled to an award of compensation against defendant under the provisions of CL 1948, § 411.10 (Stat Ann 1950 Rev § 17.150). Although the commission did find that John was an independent contractor doing a job under contract for defendant, and that he hired decedent to assist him in the work, it did not find, nor is there any admission or showing in the record, that John was, at the time in question, not subject to the workmen's compensation act. This is a prerequisite to liability on defendant's part under the mentioned statutory provisions. Assuming, however, that John was not subject to the act, defendant's liability as principal under the mentioned act would depend on its having contracted with John, the contractor, "for the execution by or under the contractor of the whole or any part of any work undertaken by the principal." Defendant was engaged in the broadcasting business. It was not in the business of and did not undertake the work of razing a radio tower. In that respect this case might be viewed as distinguishable from 2 cited by plaintiffs, namely Nowacki v. Escanaba Manfg. Co., 229 Mich. 675; and Aukstales v. Klotz, 280 Mich. 355, in which the work contracted to be done by the contractor might be considered to be part of the business of the principal and, hence, in the language of the statute, a part of the work undertaken by it. That distinction between (1) work which is part of the business of the principal and (2) work, contracted to be done for it, which is not part of its business and therefore not work undertaken by it, was clearly recognized in Burt v. Munising Woodenware Co., 222 Mich. 699; and Rinebold v. Bray, 248 Mich. 321. The case of Harris v. Fry Kain, 306 Mich. 1, cited by plaintiffs, presents greater difficulty. There the work in which plaintiff was injured and which his employer had contracted to do for the principal was clearly not a part of the business of the principal nor work undertaken by it. Nevertheless, we permitted recovery against the principal under the statute here under consideration. It is to be noted, however, that the contentions raised in that case, as also in the Nowacki and Aukstales Cases, related to other subjects, with the result that the mentioned distinction recognized in the Burt and Rinebold Cases was neither discussed nor considered. To the extent, therefore, that the Harris Case, or, for that matter, the Nowacki and Aukstales Cases, decided, without discussing or directly considering, that there is liability under the section of the statute in question on the part of a principal for injuries sustained in work contracted to be done for it but which is not part of its business and, hence, not work undertaken by it, we decline to follow them.

Affirmed, with costs to defendants.

BUTZEL, CARR, BUSHNELL, SHARPE, BOYLES, and REID, JJ., concurred.

The late Chief Justice NORTH did not sit.


Summaries of

Roman v. Delta Broadcasting Co.

Supreme Court of Michigan
Oct 6, 1952
334 Mich. 669 (Mich. 1952)

In Roman v. Delta Broadcasting Company, 334 Mich. 669, the Court, citing prior decisions, indicated the test to be applied in determining the application of part 1, § 10.

Summary of this case from Karvonen v. Stankovich
Case details for

Roman v. Delta Broadcasting Co.

Case Details

Full title:ROMAN v. DELTA BROADCASTING COMPANY

Court:Supreme Court of Michigan

Date published: Oct 6, 1952

Citations

334 Mich. 669 (Mich. 1952)
55 N.W.2d 147

Citing Cases

Williams v. Lang

(Emphasis added.) I agree that Roman v Delta Broadcasting Co, 334 Mich. 669; 55 N.W.2d 147 (1952), was…

Woody v. American Tank Company

See the litany of cases beginning with Burt v Munising Woodenware Co, 222 Mich. 699; 193 N.W. 895 (1923),…