Gall v. Detroit Journal Co.

191 Mich. 405 | Mich. | 1916

Person, J.

(after stating the facts). The contract between the Detroit Journal Company and Rebtoy constituted a very plain and simple arrangement for an employment of an equally plain and simple character. Omitting the provisions relating to default or failure in performance, it amounted to just this: Rebtoy was to deliver the papers to such persons, at such places, and on such time as the company should from day to day designate. Such delivery was the result to be obtained. And Rebtoy was to effect such delivery and obtain such result by any means and by any conveyveyance and in any way he saw fit. He could make the deliveries in person, or through others employed by him. It is shown by the evidence that those making deliveries for the company did occasionally employ others to do the work. He could use a horse, an automobile, or carry the papers on foot, provided he got them to the right persons, at the right places, and upon time. So far as the terms of the contract are concerned Rebtoy was certainly an independent contractor and not a servant. One whom the employer does not control, and has no right to control, as to the method, or means, by which he produces the result contracted for is an independent contractor. De Forest v. Wright, 2 Mich. 368; Riedel v. Moran, Fitzsimons Co., Ltd., 103 Mich. 262 (61 N. W. 509); Wright v. Manufacturing Co., 124 Mich. 91 (82 N. W. 829, 50 L. R. A. 495) ; Lenderink v. Village of Rockford, 135 Mich. 531 (98 N. W. 4); Burns v. Paint Co., 152 Mich. 613 (116 N. W. 182, 16 L. R. A. [N. S.] 816) ; Rogers v. Parker, 159 Mich. 278 (123 N. W. 1109, 34 L. R. A. [N. S.] 955, 18 Am. & Eng. Ann. Cas. 753) ; Larsen v. Telephone Co., 164 Mich. 295 (129 N. W. 894); Inglis v. Driving Ass’n, 169 Mich. 311 (136 N. W. 443, Am. & Eng. Ann. Cas. 1913D, 1174); Ripley v. Priest, 169 Mich. 383 (135 N. W. 258); McBride v. Shingle Co., 173 Mich. 248 (138 N. W. 1077); Bissell v. Ford, 176 Mich. 64 (141 N. W. 860) ; Bacon v. Candler, 181 Mich. 372 (148 N. W. 194); and see copious note to Richmond v. Sitterding, 65 L. R. A. 445.

Rebtoy did have a contract for a specific piece of work; that is, for the delivery of the papers. And it was none the less specific because the places to which the deliveries were to be made, and the persons to whom the papers were to be delivered, might change from day to day. The right, on the part of the company, to designate the persons and places was but a right to designate the result to be obtained, and did not give the company any control over the method for obtaining that result. Rebtoy was paid by the week, but so was the contractor in Burns v. Paint Co., 152 Mich. 613 (116 N. W. 182, 16 L. R. A. [N. SJ 816). Rebtoy was not a licensed drayman, but that would not prevent his taking an independent contract, so far as the Journal Company was concerned. All of these things might be important in determining the relation of the employer and employed in a doubtful case, but they are not controlling in the face of a definite contract which clearly defines the relation. No reason is seen why a man may not agree, as an independent contractor, to deliver all, or part, of the papers printed by a publisher, of the groceries sold by a groceryman, or of the goods sold by a merchant, if the method and means for doing so are left entirely to him without any right of control by the employer. In the instant case either party had the right to terminate the contract at pleasure. That might be a very important circumstance in some cases, but under this contract any threat by the employer, express or implied, to use the right, for the purpose of controlling Rebtoy as to the method or means of making deliveries, would have been in violation of the terms of the contract. So long as the contract was adhered to, Rebtoy was independent in all of the methods of doing the work.

But a contract may be abandoned in whole or in part, or may be disregarded. And where the employer has the right to terminate the contract at his pleasure, he may use that power so as to exercise a control not warranted by the contract. In all such cases the employer may assume the position of master, and make himself liable for the negligence-of the employee. It is urged that the company in this case did in fact assume a control of Rebtoy as to his manner of delivering the papers by posting up notices in.the mailing room for the control of the delivery men. But the only notice posted up, so far as we can gather from the record, was one requiring the delivery men not to exceed the speed limit fixed by law. This was really no exercise of control. It was, at the most, only a direction not to do a thing that the delivery men had no right to do. It did not assume to control any freedom of means and methods that the delivery men actually possessed.

As the evidence stood, we think the court should have directed a verdict for the defendant.

Judgment is reversed, and without a new trial, with costs to appellant.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.