This is certiorari to the department of labor and industry to review an order made by them in favor of the plaintiff. Frank A. Muehlenbeck met his death on October 9, 1923. He was struck by a Michigan Central train while hauling stone for the defendant. Glenn Muehlenbeck is an infant and was dependent upon Frank A. Muehlenbeck, his father. Charles F. Muehlenbeck, plaintiff, was appointed guardian of Glenn Muehlenbeck (who was at the time of his father's death 10 years of age) by the probate court for the county of Saginaw. Carl A. Muehlenbeck, a brother of the deceased, was appointed administrator of the estate of Frank A. Muehlenbeck by the probate court of Saginaw county, Michigan. Negotiations resulted between the administrator and the Michigan Central Railroad Company. *Page 7 A settlement was reached by the payment of $500 by the railroad company, which sum was accounted for by the administrator to the guardian of the child.
We quote from the brief of counsel for the appellants:
"We submit that there are two defenses, either one of which is fatal to the claim for compensation in this case, which may be stated as follows:
"First: The settlement with the railroad company actually completed, is an election which bars the claim for compensation.
"Second: Decedent was an independent contractor.
"As to the first proposition: The statute provides that in cases of liability on the part of a third party 'the employee may at his option proceed either at law against that person to recover damages or against the employer for compensation under this act, but not against both.' Section 15, part 3, compensation act (2 Comp. Laws 1915, § 5468);" citing City ofGrand Rapids v. Crocker, 219 Mich. 178; La Londe v. JennisonHardware Co., 219 Mich. 194.
The administrator was sworn as a witness. We quote some of his testimony:
"Q. In reference to this paper, this typewritten paper Exhibit 1, signed by C.A. Muehlenbeck, administrator, how did you happen to sign that? * * *
"A. Well, the railroad company man wanted to settle for the loss on the truck and it was settled in the judge of probate office.
"Q. You had nothing to do with the preparing of the paper?
"A. Absolutely not.
"Q. Was it prepared by the railroad people themselves?
"A. I imagine it was.
"Q. What did they say to you, if anything, if you didn't take five hundred dollars you would not get anything?
"A. Well, we could either take five hundred dollars or nothing." *Page 8
In relation to this settlement the department of labor and industry expressed itself as follows:
"Respondents contend that applicant has elected to proceed against the Michigan Central Railroad Company, the third party responsible for the accident in this case. The administrator of the estate received a $500 settlement from the railroad company and the same was turned over to the applicant's guardian. The administrator testified that this $500 settlement was for the damage to the truck owned by deceased. The petition for permission to make the settlement and the order of the probate court indicates that it was made for the injuries suffered and death of deceased but the administrator stated he had no intention of settling for the death of deceased, but rather for the damage of the truck.
"In Zirpola v. T. E. Casselman, 237 N.Y. 367 (143 N.E. 222), the court said:
" 'We think a cause of action for injuries resulting in death, prosecuted by an administrator against some one other than the employer, is for the benefit, not of dependents as defined, by the workmen's compensation act, but of next of kin as defined by the Code (§§ 1903, 1905), or by the decedent estate law continuing the Code provisions (§§ 133, 134). The two classes are not invariably nor perhaps commonly the same.'
"The record does not show that the applicant ever had an opportunity to elect to proceed under the workmen's compensation law or that he ever did elect not to proceed under such law. We think the settlement of $500 received by the administrator of deceased's estate could have no bearing on this case, as it manifestly was the intent of the administrator simply to settle for the damages to deceased's truck."
We think it unnecessary to express an opinion about the legal phase of this situation as urged by counsel, because the board has found as a fact that the settlement was for damages to the truck, and there was some testimony upon which to base such finding. See Solomon v. Railway, 221 Mich. 599; King v.Munising Paper Co., 224 Mich. 691.
2. Was decedent an independent contractor as *Page 9 by counsel? They insist that the case is controlled byGall v. Detroit Journal Co., 191 Mich. 405 (19 A.L.R. 1164);Polka v. Lynch Timber Co., 227 Mich. 606; Donithan v. Iron Chemical Co., 227 Mich. 609.
The facts are not in dispute. Mr. Muehlenbeck was employed to draw with a truck stone from a car to where the stone was needed in a highway under construction by J. W. Ederer Company, a corporation. He was paid 25 cents a yard mile. He unloaded the stone where he was directed to do by the man having charge of the construction. The record does not show he agreed to deliver any specific quantity of stone; or that he was employed for any stated time. His employer did not agree that he should be employed for any stated time, or that he should deliver any specific quantity of stone. He could quit any time or be discharged at any time. We think he was an employee. Shafer v. Parke, Davis Co., 192 Mich. 577; Arnett v. Hayes Wheel Co., 201 Mich. 67. See Scott v. O. A. Hankinson Co., 205 Mich. 353; Van Simaeys v. George R. CookCo., 201 Mich. 540; Tuttle v. Embury-Martin Lumber Co.,192 Mich. 385 (Ann. Cas. 1918C, 664); Conrad v. Cummer Diggins Co.,224 Mich. 414; Hector v. Cadillac Plumbing Heating Co.,226 Mich. 496.
The order of the department of labor and industry should be affirmed, with costs.
BIRD, J., concurred with MOORE, J. *Page 10