Roman v. Delta Broadcasting Co.

334 Mich. 669 (1952)

55 N.W.2d 147

ROMAN v. DELTA BROADCASTING COMPANY.

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

Supreme Court of Michigan.

Decided October 6, 1952.

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

Burney C. Veum, for defendants.

DETHMERS, J.

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.

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 *671 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 *672 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.

[*] See CL 1948, § 617.65 (Stat Ann § 27.914). REPORTER.