*1 Át?p 15 Opinion op ti-ie Court cannot now juror, it be held that the grand people an for an opportunity have had evidentiary hearing on that issue. This opportunity must be afforded. will The case therefore be remanded for an eviden- People v. Walker hearing under tiary (On Rehear- 374 Mich 331. 1965), ing, As to claim of the defendants that the ques- tions asked as to which the false alleged answers given, were were not material to inquiry, there questions is no doubt as to receipt of gra- by officers, tuities although imprecisely asked and were possibly vague, pertinent to the grand jury of inquiry bribery into crimes of officials for public of their purposes securing perform failure to their duties.

Reversed and remanded.

T. G-. P. J., J., concurred. Levin, COMPANY, v. GOODELL

ERICKSON OIL INC. (cid:127) — n Employment Relationship Transper — 1. Master and- Servant op Business. employee party An of one cannot Lave an party upon with another thrust him means of an unknown original employer’s sale or transfer of his business party; other there must be some manifestation of mutual as- sent between the new owner and the before employment agreement implied between the two of them. [1, 2] 58 Am Jur, Reference Workmen’s por Compensation Points Headnotes et seq. Co., 1968] v. Goodell — — — Relationship Employment of Business Transfer 2. Same Remedy. Compensation —Exclusive person who be an who contracted knowledge plaintiff, later, transferred without the held, be ownership *2 took since no mutual assent of the defendant an employment found an eould be place from which remedy implied; limited therefore injury- compensation for provided by workmen’s statute the job property. on on defendant’s received the D.), Houghton, (Stephen Appeal J. from Condon Marquette. at 3, 1968, October Submitted Division (Docket 3,304.) 31, December 1968. No. Decided appeal granted March 1969. See Leave Mich 807.

Complaint Shirley by Erickson and Erick- John Michigan Company, against Inc., a Goodell Oil son injuries by corporation, suffered John for property. Accelerated on defendant’s Erickson judgment appeal. Re- Plaintiffs for defendant. and remanded. versed plaintiff. Wisti, H.

Andrew Messner, for defendant. Theodore P. J. Plaintiff John T. G. by employed in 1963 one sometime Stuart Bridge doing Goodell, who was business Service building, At the and time, Station. fixtures realty Bridge by owned utilized Service were Station entity, by separate Company, de- a injured prem- on herein. Plaintiff was fendant brought alleg- and this action ises in October third-party ing negligence by tort-feasor premises. maintaining in Defendant a mo- filed (GCR [2]) judgment for accelerated tion claiming as Goodell had “ab- that, Goodell, sorbed” the i.e. Arp 398 15 Mich op the Court Station, plaintiff defendant’s remedy was prescribed’

whose exclusive by Compensation Law. Plaintiff opposed that he denying the motion was an employee of defendant, having never been notified of the transfer never or expressly having impliedly entered into contract with The company. court trial conducted on hearing the matter and thereupon defendant’s granted motion for acceler- ated judgment stating: present in

“[Plaintiff’s] action tort is barred under the provisions Michigan compensation Further, act. that in accordance therewith, the court lacks jurisdiction of the subject matter.” From that holding, appeal this ensues. workmen’s statute reads part:

“The term ‘employee’ used in this shall act be construed mean: to

* * in Every person the service of another under any hire, contract of express or implied.” CL (Stat § 411.7 Ann 1968 Supp [2]). Cum 17.157 § act, The to become operative, the existence requires of an employment contract. An employee cannot have such automatically contract thrust him upon of an means by sale, “absorp- unknown transfer or employer’s tion” of his another. 99 See by CJS, 40, 65, Workmen’s Compensation 107(e); §§ Larson, Compensation (and Workmen’s Law 48.10 § Am Com- Supp); Jur, § Cum An pensation 352, p 815. employment must be Scott Alsar established. v. v. Twin 532, 537; Drilling Powell

(1953), 300 Mich 566. (1942), Co.

1968] v. Co., op the Court agreement express has been no reached Where parties, be some there must manifesta- between by words or deeds from which of mutual assent tion an implied. may agreement An be con- defined as: has been tract which from the ‘relation results manifesta- “The person by one another consent to that the

tion of subject to shall act on behalf and his con- other trol, his ” by to act.’ the other so and consent See (3d ed), § 1012. on Contracts 9 Williston relationship mutual created such consent the: wherein that of master-servant employes agent principal is a who “master perform his in affairs.” services and the employed agent by the

“servant is the master to perform Agency, in his affairs.” 1 Restatement, services

§2d, 2. the time hire, In this at Stuart Goodell case, Any was the the master and servant. was January, change of in status of Stuart Goodell position principal plain- and master his over from agent cannot tiff that of an the Goodell Co. principal, obligate a new absent disclos- Upon discovery, plaintiff may elect and consent. ure principal as master, but he need the new to treat so. not do undisputed hearing, testimony that,

At the operated by Station entity. legal separate as a *4 understanding. this his with initiated January, testimony when that in was There no Bridge Company “absorbed” Oil Goodell any a such transac- notification of Station, Ahp Opinion op the Court provided employees tion was was no affected. There positive plaintiff evidence that knew of per- transfer; therefore, his work at that time was principal. any formed undisclosed Absent proof plaintiff acquiesced that discovered and in his newly acquired finding status, there can be no of his consequently, consent to it and as a matter of law, implied no contract of hire existed between the parties to this action.

The fact that the Groodell Oil had Co. carried employee on its books as an from the time January, plain- of the business transfer 1964until injury proof tiff’s in October of 1964 is no of his knowledge especially pay of the transfer, since his unchanged management checks remained and the was identical. question solely have confined

We ourselves any presented of whether there was evidence at the hearing judg- on motion defendant’s for accelerated ment which would establish that knew, while performing premises Bridge services on the of Serv- Station, ice had become employer. true find that We such no evidence presented consequently that the trial court holding implied erred in as a matter of law that an hire of existed. Plaintiff cannot be defendant’s if he did knowingly position. agree corpo- such a legal by transferring entity ration, obligated has own, Service Station its itself to payment of workmen’s benefits to in- jured employees Goodell, but at the same by failing prove time, that this change, remains, notified or knew of the capacity, potentially liable in its known third- party tort-feasor.

1968] v. Go., op the Court is remanded, case therefore, for a trial on the merits. may tax costs. J., concurred with T. G.

McGregor, J.P.

Philip (dissenting). C. Elliott, J. Viewed in reality, disagree terms of I economic cannot with the judge’s purposes trial ing conclusion that for of assess- liability under the workmen’s act employer was the of Erickson injury. at the time of his Goodchild v. Erickson (1956), 375 Mich 289, 293. He was hired to work proprietor for the of the service station which the corporation nearly year had run for before he was knowingly accepted hurt; and he has his workmen’s compensation benefits from defendant. jurisdiction The circuit court is without because of (CL

part § §411.4 [Stat 1, 4 1948, Ann 1968 Rev 17.144]) § by part act, the action is barred (CL § § [Stat Ann 1968 Rev 17- .212]), also. judgment.

I would affirmthe accelerated