Docket No. 3, Calendar No. 45,651.

337 Mich. 292 (1953)

60 N.W.2d 150


Supreme Court of Michigan.

Decided October 5, 1953.

Attorney(s) appearing for the Case

Linsey, Shivel, Phelps & Vander Wal, for plaintiff.

Frank G. Millard, Attorney General, Edmund E. Shepherd, Solicitor General, and George M. Bourgon, Assistant Attorney General, for defendant.


Plaintiff appeals from judgment of no cause for action in its suit to recover 2 employer's unemployment compensation contributions paid by it, under protest, to defendant commission, covering the fourth period of 1949 and the first period of 1950.

Plaintiff is engaged in the mail-order business of selling bulbs and nursery stock at retail. During the periods in question it was subject to the unemployment compensation act (PA 1936 [Ex Sess], No 1, as amended [CL 1948, § 421.1 et seq. (Stat Ann 1950 Rev § 17.501 et seq.)]). A number of years ago it began to need, for the distribution of advertising media and for shipping merchandise, certain cards, envelopes or mailing stickers, bearing typewritten names and addresses thereon taken from its prospect or customer lists. Because its business was seasonal it did not maintain an office force to produce the same. Instead, it permitted various persons, at times as many as 70, to pick up or cause untyped cards, envelopes or stickers and the lists to be picked up at plaintiff's place of business, at intervals of about once a week and, at the same time, to return to plaintiff those previously picked up, if any, with the desired typing appearing thereon. For typed materials, so delivered to plaintiff, it paid at an agreed rate of so much per quantum. The typing was done off plaintiff's premises, originally with typewriters not owned by it, but later, in some instances, with its machines. The typing was not done by persons employed by plaintiff in the usual manner of its regular office help; no personal interviews or references were required of them. Plaintiff exercised no supervision or control over them, but did require that material taken out be returned within a specified time and request that it be returned completed and not piecemeal; they were paid on the basis of results only. At times plaintiff gave them checksheets showing their errors in previous typing. In its brief plaintiff says, as borne out by the record, that there was such lack of personal relationship between them and it that plaintiff did not necessarily know who actually had done the typing, payment being made solely for delivered results without regard for the identity of the persons producing them.

Plaintiff bases its claimed right to recover upon its contention that the typists were not its employees and, in that connection, stresses its lack of control or right of control over them in the production of the typed materials, citing Bert Baker, Inc., v. Ryce, 301 Mich. 84; Acme Messenger Service Co. v. Unemployment Compensation Commission, 306 Mich. 704; O'Brian v. Unemployment Compensation Commission, 309 Mich. 18; Palmer v. Unemployment Compensation Commission, 310 Mich. 702 (158 ALR 909); Graystone Ballroom, Inc., v. Baggott, 319 Mich. 87. It is to be noted that the periods involved in those cases antedated PA 1943, No 246, which amended the 1936 act and omitted therefrom the provision found in section 42,* subsection 4(a), (made section 42, subsection 6[a] by PA 1937, No 347) that one of the tests of "employment" under the act should be whether the person performing services was free from control or direction over his performance thereof. In Nordman v. Calhoun, 332 Mich. 460, stressed by defendant and relied upon by the lower court, which involved a period after the 1943 amendment, we said:

"In our opinion the statutory definition of `employment' as provided in section 42(1) of the act is clear and unambiguous. It means service performed for remuneration or under an oral or written contract for hire. The only issue in the case at bar is to determine whether Date Scofield was an employee or an independent contractor."

This indicates that there still may be an independent contractor relationship not subject to the act. How it can exist without the element of service for remuneration or under an oral or written contract for hire is not elucidated. The gist of the opinion is that when service is performed for remuneration, there is employment subject to the act.

Was service performed for remuneration in the instant case? We think not. Rather, a finished product was delivered to plaintiff for which it paid a price. This case is similar to and ruled by Bert Baker, Inc., v. Ryce, 301 Mich. 84, in the following respects: (1) Plaintiff did not contract for personal services, but only for results; (2) the employer-employee relationship did not result from the mere fact that plaintiff furnished the materials on which the typists worked or checked the typewritten materials for errors and advised the typists concerning the same, or furnished to others for a consideration some of the completed, typewritten materials.

Judgment reversed and cause remanded, with directions to enter judgment for plaintiff in the agreed amounts of $62.79, with interest from January 25, 1950, and $556.50, with interest from April 24, 1950. No costs, a public question being involved.



* This section was also amended by PA 1949, No 282 — REPORTER.


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