Higgins v. Monroe Evening News
245 N.W.2d 769
Mich. Ct. App.
1976
Check Treatment

*1 1976]

HIGGINS v MONROE EVENING NEWS

Opinion Court Compensation Appeal Appeal 1. Workmen’s — and Error — Board —Findings Finding of Law. of Fact — Appeals The Court of is bound of fact of the Compensation Appeal any Workmen’s Board if evidence exists however, them; support in the record to the Court is free to (Const 28). 1963, 6, rulings correct law erroneous art § Appeal Appeals. 2. and Error —Law of the Case —Prior requires appellate The law-of-the-case rule an court to adhere to legal rulings prior appeal made on a of the same case where underlying changed. facts have not Interpretation Legislative 3. Statutes —Construction—Literal — Intent. interpreted literally A statute should not be where a literal interpretation clearly contrary legisla- leads to a result tive intent. Compensation Paperboys—Helpers—Five-Year- 4. Workmen’s — Olds. five-year-old helper paperboy, A occasional of a substitute who promised helped had been remuneration and who had paperboy past, “employee” substitute is not an under the (MCLA Compensation Workmen’s Act 17.237[161]). [1, [2] [4, [3] [10] [9] [11, [12] [14] Interlocutory ruling 8] 5-7] 5 Am Jur 73 Am Jur 81 Am Jur Workmen’s 82 Am Jur Workmen’s same 82 Am Jur Workmen’s 16 Am Jur 81 Am Jur Workmen’s 82 Am Jur Workmen’s 48 Am Jur case. 132 ALR 14. 2d, Appeal 2d, 2d, 2d, 2d, 2d, References 2d, Statutes 2d, Constitutional Law 533. 2d, or order of one Labor and Labor Relations and Error 744 § for Points 194 et Compensation Compensation Compensation Compensation Compensation § seq. judge § in Headnotes et seq. § § §§ § binding 381, 382, 161. § §§ et 613 et seq. on seq. 411. another 1873. Appeal Reargument— 5. Workmen’s — Board — Hearing Change Membership. Panel — parties Board should Workmen’s offer opportunity reargument membership where of the hear- *2 ing panel argument. changed oral has after by T. M. P. J. Compensation -Findings Appeal 6. Workmen’s — of Fact — and Er- ror —Constitutional Law. Findings compensation proceedings of fact in workmen’s shall be provided conclusive the absence of fraud unless otherwise (Const 1963, 6, §28). law art Appeal Compensation Appeal 7. Workmen’s Board — — and Error —Findings of Fact —Statutes. Findings Compensation Appeal of fact made Workmen’s the acting fraud, powers, Board within its in the absence of shall be (MCLA418.861; 17.237[861]). conclusive MSA Compensation Paperboys—Helpers—-Employee— 8. Workmen’s — Statutes. Compensation Board, A decision of the Workmen’s helper paperboy "employee” occasional of a substitute is an Compensation Act, under a section of the Workmen’s should be (1) appeal application affirmed on where of the statute was (2) broad, very intended to be board’s decision is a (3) simple application act, language of the clear of the clearly contrary legislative decision is not intent ex- (MCLA pressed 418161[1][b]; 17.237[161][1][b]). in the act MSA Compensation Independent 9. Workmen’s — Contractors —Second- Employees Coverage. Level — Compensation The Workmen’s Act was intended to extend com- pensation employees independent benefits to second-level of (MCLA418.171; 17.237[171]). contractors MSA Compensation Minors—Illegal Employment— 10. Workmen’s — Compensation. Double employment illegal A minor injury whose is at the time of his Compen- entitled to double under the Workmen’s (MCLA418.161; 27.237[161j). sation Act 11. Infants —Child Labor Laws —Work Permits —Street Trades— Newspapers. employment permits of minors without work in the distribu- employment illegal newspapers because of tion of is not minors permitted permits trades" is in "street without work newspapers trade". is a "street

distribution of Legislation—Classi- Equal Protection — 12. Constitutional Law — fications. grounds Legislation equal protection if on it creates is invalid reasonable which are without bases and are classiñcations purely arbitrary. Employment Excep- Laws — 13. Infants —Child Labor Prohibited — Paperboys—Constitutional Law. tions — permitting age There are children rational bases generally prohibiting paperboys while 14 to work as their occupations; legislative decision is in other goal preventing reasonably related to the child 17.714). (MCLA409.14;MSA labor abuses Wages Workmen’s of Benefits — —Determination Majority. —Expected 25-Year-Olds—Age Increase — Act, providing A section of the that a Workmen’s wages hearing may consider that referee sometimes position years may expected a claimant less than 25 old be *3 increase, age apply until the claimant reaches the does not (MCLA418.359; 17.237[359j). majority Compensation Appeal from Workmen’s Appeal (Docket 7, 1976, at Detroit. May Board. Submitted 23812.) 3, 23605, August Decided Leave Nos. applied to for. appeal Eve- Higgins against Daniel S. by

Claim Liability Mutual Com- Michigan News and ning Award of com- compensation. for workmen’s pany Compensa- the Workmen’s by modified pensation appeal Board. Plaintiff and defendants tion Decision to award granted. leave by reversed. Benschoten, C,P. & van for Benschoten

van plaintiff.

LeVasseur, Werner, Brown, Mitseff & defend- for ants. App Opinion of the Court Keywell (by Amicus & Rosenfeld Curiae: Fre- Collins), Keywell I.

deric David A. and Michi- gan Press Association. J., R. B.

Before: T. M. P. Burns, J.V. JJ. Brennan, Evening

V. J. J. Defendants Monroe Brennan, Michigan Liability Company News and Mutual Compensation Appeal from a Workmen’s affirming hearing Board order the decision of ref- Ray Ravary awarding compensa- eree workmen’s plaintiff. appeals tion benefits to Plaintiff from a portion Ap- of the same Workmen’s peal Board order which reduced the amount of compensation initially appeals by ordered the referee. Both granted pursuant by are leave to GCR 806.2(1). granted addition, In the Court has petition Michigan of the Press Association to purposes filing intervene for an amicus curiae 209.1(3). brief. GCR testify The voluminous files in this matter ability Compensation litigation of Workmen’s complex appeal create issues out of mundane case Compensation Appeal histories. The Workmen’s already opinions, Board has written two detailed the first of which was reviewed and reversed in part by this Court in v Monroe (1972), News, 201 NW2d 665 lv (1972). During seven-year den, 388 Mich 786 history many of this case issues have been raised parties reviewing and decided one of the prior tribunals or abandoned decision; unfortu- nately, many other issues have been raised but *4 pro- decided neither nor abandoned. Rather than long unnecessarily protracted litigation, we try speak forthrightly concisely will single which we feel

issue controls in this case. v Monroe Opinion the Court The lengthy facts not half involved here are so complicated litigation they spawned. In regularly 1966, Robert Edwards delivered the de- papers plaintiffs neighborhood. fendant’s actively participated Because Edwards in school sports, agreement he worked out an with Frank whereby Handler per Handler substituted for him on a practice days. February diem basis on 4, 1966, day. such was a completed part date,

On that Handler the first of the route and returned to his home for more papers. five-year-old Nicky Handler’s brother (Nicholas) plaintiff playing and the were inside. they accompany Handler asked them if him on the wanted to paper agreed. they route and points Evidence conflicted over two factual vital (1) plaintiff actually to this case: whether delivered past papers or had in the delivered for Handler (2) plaintiff promised compensa whether regard, opinion tion for his efforts. In this Compensation Appeal the Workmen’s Board made specific findings issues, of fact about both and we by are bound that determination. Const art Gundelfinger, § 28. See Moore v 223 NW2d 643 lowing: were the fol "This testimony promise establishes that a of consid- in eration the form of dime, by way remuneration of a pop bottle of candy or some plaintiff made to help return for his delivering newspapers and that this had not been the first time had helped.”

During particular the course of deliveries on this boys standing afternoon, all while three were waiting the curb street, cross the suddenly ran into the street and was struck *5 App Mich Opinion of the Court injuries August and, occurred,

car. Severe on Hearing began 1968, an initial for Petition prolonged litigation. carefully

We have reviewed all of the issues present appeal raised on that and find determi- necessary. Simply only put, nation of one is plaintiff, helper five-year-old occasional substi- employee paperboy purposes Handler, tute for an of the Act? We Workmen’s find he was not. We reverse.

Though required accept this Court to factual of the Workmen’s "any Board if evidence” in the record support completely them, exists to we are free to rulings correct erroneous law board Laboratories, Inc, Deziel v Difco (1975). Kavanagh NW2d 146 Chief As Justice opinion, any stated in that the "facts” of case must clearly distinguished "jural be ships” from the relation- finding plaintiff

involved. The that delivering papers, or had delivered them in the past, offered, and that remuneration was does not arrangement bind us to conclude that the between plaintiff type Handler and amounted to the qualify contract of which would benefits. following language We do not find in the of the adequate support expansive act for such an inter- pretation would have us make: * * * employee "An as used in this act shall mean: (b) another, Every person in any the service of * * * hire, express including contract of or implied, minors, who shall be considered the same'as and have power employees.” same contract as adult 17.237(161X1). 418.161(1); argues opinion prior Plaintiff this Court’s Evening Higgins v Monroe op Opinion the Court represents and so the case” the "law of constrains employee. See us find him an supra, agree. News, at 305. We cannot Telephone Michigan Co, 61 Allen v Bell 62; 232 As defined in that NW2d 302 deci- requires appellate sion, the rule law-of-the-case rulings legal prior to adhere to made on a court underlying of the same case where the *6 changed. facts have not opinion prior of

Review this Court’s discloses no legal ruling plaintiffs employee. on status as an Logically, they not rule on this issue could because legal they ruling concerning the did make the propriety admitting prior Handler’s statement August upon 1968 the was unresolved factor legal plaintiffs possible which the decision about employee remand, status as an could be made. On examination, after the board did resolve plaintiffs the factual conflict favor. plain- despite

However, the board’s promised tiff had been remuneration and had helped past, Handler we cannot force a prior opinion. nonexistent a conclusion from We presently must now decide on the basis of the established facts whether was an em- ployee. reading

Certainly a literal of the statute in relation to the facts found the board would employee. However, incline to find us we cannot follow this course where a literal inter- pretation trary clearly would lead us to a result con- People McFarlin,

to the intent. (1973). 557, 563; 389 208 504 See also Mich NW2d Michigan p85, Practice, Statutes, § Law & initially an affir- Two decisions would indicate ruling inspec- case, mative in this on a closer but distinguish Zdrojewski tion themselves. v Vernor’s App 407 Opinion Court Ginger Saginaw Ale, Jochen v 1959 WCABO County, NW2d Zdrojewski, compensable

In rela- tionship bottles of was where two soft found drink cleaning up were offered for in return broken ruling ap- bottles on That was never the street. pealed. Michigan Supreme Jochen, In Court jury duty person held that a summoned county employee not an of the defendant Act. Workmen’s these One conclusion is clear when situations compared present are compensation case: an award with

here would stretch Workmen’s entirely Act into an new dimension. ruling What an affirmative case would do Zdrojewski compensation would be to combine independent special rule with the uninsured con- provision- tractor of MCLA 17.237(171), person to award to a whose existence not known defendant any employees. or of its do not We believe the Legislature foresaw intended this result. We *7 step cannot take such a a without clear indication Legislature none, the that it taken. be We see and we will so not extend the act. strictly apply

We decline also the "economic reality employ test” where the of existence the relationship ment itself and not the nature of that relationship, employees i.e. the distinction between independent contractors, is at See Mc issue. App Bodine, 203; Kissic v 42 Mich 333 201 NW2d (1972), Erickson, 289; Goodchild 375 134 Mich (1965), Muskovitz, NW2d 191 Tata v (1959). However, 71 NW2d even extent reality might applied here, the economic test be simply support legal the facts do not the conclu employed by sion that defendant v Monroe Burns, P. J. M.T. Local v Chevrolet the act. See Cronk NW2d See 398-400; appli nonsensical often how uneven and also e.g. reality” factors, eight "economic cation supra McKissic, 208-209, at five, factor defined As the Court Mc this instance. be in would helpful only indicator stated, the test Kissic legal finality. Mc courts, a rule of not for the eight supra, Thus, enu while Kissic, at attempt objectify represent an merated factors application analysis, the test in each reasoning. subjective necessarily involves case that the Work- balance, convinced arewe On intended to never Act was men’s provide position person for a Consequently, hold, plaintiff. we as a mat- employed by not law, ter of newsboy the substitute or the defendant either 418.161(l)(b); meaning within the 17.237(161)(l)(b). holding the need to forecloses on this issue Our brought by par- remaining issues most discuss specifically the issue to discuss ties. We decline whether employees boys newspaper inde- are pendent Com- under the Workmen’s contractors matter, pensation do However, we on another Act. cases, that, the Workmen’s in future recommend oppor- parties Board offer membership reargument tunity of a if the arguments changes hearing panel have oral after process possible due to avoid held so as been violations.

Reversed. Burns, J., concurred.

R. B. (dissenting). I P. J. M.T. respectfully dissent. *8 App 407 70 by P. J. M. T.

I compensation Both the referee workmen’s appeal plaintiff the employee found that board was an employee

of Frank Handler who was an independent of Robert Edwards an who was con- by pa- tractor hired the defendant to deliver its pers.

Michigan provides § that, art Const "[findings compensation pro- of fact in workmen’s ceedings shall be in the conclusive absence of provided by fraud unless otherwise law”. providing otherwise, Not mandate requires "findings that of fact made the board acting powers, fraud, within its in the absence of shall be conclusive”. MCLA MSA 17.237(861). requires

Moreover, case law this Court appeal affirm of fact board if there "any support evidence” in the record to findings. Hawley Corp, v General Motors App 114; 240 NW2d 290

Finding promised that the consider- delivering newspapers, ation for his assistance appeal board concluded that a contract of qualified existed which benefits. I find the board’s legal simple application conclusion to be a of, questionable interpretation rather than of, language clear of the Workmen’s "employee” act, Act. Under the is defined "Every person any another, service of express implied, including hire, contract of * * *minors, who shall be considered the same as power and have the same employees.” to contract as adult 418.161(l)(b); 17.237(161)(l)(b). added.) (Emphasis *9 Burns, P. J. by T. M. Dissent Accepting appeal fact, a board’s the reading stat- fair of the workmen’s compels decision I the below. do ute affirmance clearly appeal to be decision find board’s not contrary the expressed intent the wording compels contrary, § 161 the On the act. the conclusion application was intended to that its very broad. be

II assuming regular argues that, Defendant independent paperboy and contractor that was an regular newsboy employee of the Handler was employee, plaintiff Handler’s that was 17.237(171) 418.171; should not be MSA MCLA extending compensation to benefits read plaintiff. argument is that the Workmen’s

The provide for the com- Act does not subemployees. pensation of agree- reading compels Again, of the act a fair Application appeal §of 171 board. ment with the requires finding that the a the facts of this case to employee plaintiff of the defendant since anwas regular subemployee of the was a interpretation clearly paperboy. a reasonable It is § that 171 was intended to act to conclude of the independent employees con- second-level cover tractors.

Ill hearing found that because referee The permit young his a too to secure work was illegal employment defendant, there- had been compensation under fore, for double was liable 17.237(161)(l)(b). 418.161(l)(b); The MSA plaintiff’s appeal however, em- board, found that J. M. P. T. ployment illegal had not and reversed been part of the referee’s decision. appeal

The that MCLA 409.14; board reasoned MSA 17.714 and MCLA 17.728 create newspaper exemption a "street trade” distribu- general illegal tion it from rule that employ young a minor who is too obtain work permit. board correct.

Any illegal minor whose at the injury compensa time of his is entitled to double tion under the Workmen’s Act.1 If *10 procured permit, the minor employment not has work his (unless exempted) illegal.2 is With one exception, persons age irrelevant under the of 14 permits.3 However, cannot obtain work the em ployment of in minors "street trades” is not ille gal, newspapers of the distribution is a "street newspaper expressly trade”.4 Since distribution is exempted, age neither the minimum nor the work permit requirements apply paperboys. argues, exemption however,

Plaintiff unconstitutionally protection equal denies him protection the laws as it denies him the otherwise agree. afforded I don’t minors.

Legislation equal protection invalid on grounds if it creates classifications which are with- purely arbitrary. out reasonable bases and are McGowan, Bank & Manistee Trust v Co 655; 232 636 NW2d It is clear to me that permitting there are rational bases for children age paperboys under the to work as while generally prohibiting employment their in other occupations. working The hours and conditions of 3 Id. MCLA MCLA 418.161; 409.3; MSA MSA 17.703. 17.237(161). MCLA 409.14, 409.28; MSA 17.714, 17.728. P. T. J. M. newspapers sufficiently children are who deliver distinct other industries from those which historically employed, per- children were and the type experience ceived benefit of this work properly supports encouragement. children its It is also reasonable to assume that the health risks employment abuses which existed in other considerably areas of child labor were different in degree newspaper both kind and from that of distribution. permit

The decision to children to newspapers generally prohibiting deliver while their ably in other businesses is reason- legislative goal preventing

related to the certainly child labor It abuses. was not unreasona- Legislature ble for the by making to effectuate the distinction exception general

it an to a rule of prohibition. 409.14; MSA 17.714 is valid. plaintiff’s employment illegal,

Since not supportable. claim for double is not

IV only remaining warranting issue discussion —concerning applicability of MCLA 17.237(359) properly to this case—is not *11 agree would, however, raised or briefed. I with the hearing appli- § referee that 359 would not become age major- until cable ity. reached the I would affirm the decision of the board.