order of February 25, 1916, was merely an order of the board affirming that the agreement between the parties should stand, and indicating that possibly the applicant might be able to work some after October 19, 1915, under the terms of said order, if said applicant were unable to work after that date, the compensation of said applicant would still continue at $9.61 per week, but if said applicant were able to work some, then his compensation would be reduced proportionately under the terms of the Workmen's Compensation Law."

[1] It seems to be the claim of the respondent and appellant that the Industrial Accident Board, at the time of the entering of the order made on February 25, 1916, had before it simply the uncontradicted evidence of the facts established by the deposition of Helen Gray, and that with simply these facts before it the board should have entered an order for the discontinuance of payments to the claimant in accordance with the petition filed for such relief. We think it a sufficient answer to this contention to call attention to the return of the board, which sets forth that at the time of the making of the return they had before them the counter showing of the claimant, and they aver that they have carefully considered the testimony filed and that the order would have been the same had all the testimony been before them at the time of the making thereof. In our opinion, and in accordance with our previous decisions, we do not believe that the administration of this act should be too technical, and we can see no reason, if the board with all the testimony before them return to us that they were of the opinion that the petition should be denied, why it should not be said that there was a question of fact squarely presented to them; and they having determined it, we are in no position to review it, because of the fact that the Legislature by the terms of the act has made the decision of the board binding as to such questions. Section 12, pt. 3, Act No. 10, Public Acts of 1912. See Papinaw v. Grand Trunk Ry., 189 Mich. 441, 155 N. W. 545; Ramlow v. Moon Lake Ice Co., 192 Mich. 505, 158 N. W. 1027, L. R. A. 1916F, 955; Reck v. Whittlesberger, 181 Mich. 463, 148 N. W. 247, Ann. Cas. 1916C, 771.

[2] Up to the time that the order denying this petition was made, no formal order of the board had been made approving the agreement for compensation. It is now also urged that there was no evidence of any kind before the board which would warrant the finding of partial disability, and that therefore no such order should have been made. We see no harm to the defendants. however, from the part of the order thus complained of, which reads:

"It is further ordered and adjudged that said applicant is entitled to recover from said respondents compensation for partial disability from and after said October 19, 1915, at the rate of one-half the difference between his average weekly wage which he is able to earn thereafter.

Vol. I-Comp. 69.

So far as this part of the order is concerned, it was merely a statement of the law that the injured employee was entitled to weekly compensation equal to one-half the difference between his average weekly wages before the injury and the average weekly wages he is able to earn thereafter. Part 2, § 10, Act No. 10, Public Acts of 1912. The order does not state any definite amount for the future payments, but leaves this question to future proof. We see no legal infirmity in the order as made, and therefore affirm the action of the board.

SUPREME COURT OF MICHIGAN.

HOLBROOK
V.

OLYMPIA HOTEL CO. et al. (No. 24.)*

1. WORKMEN'S COMPENSATION-EMPLOYMENT-QUESTION OF LAW.

The facts being undisputed, the question whether a painter and decorator under contract with a hotel company was a regular employee or an independent contractor was one of law.

2. WORKMEN'S COMPENSATION-FINDINGS OF INDUSTRIAL ACCIDENT BOARD.

A finding of fact by the Board held to be in effect that the manager of a hotel was in control of the men employed by the injured painter and decorator who contracted for the job, directing them in their work, with the right to interrupt it.

3. WORKMEN'S COMPENSATION - SUFFICIENCY OF EVIDENCE-RELATION OF PARTIES.

A finding of the Industrial Accident Board that defendant hotel was in control of men employed by an injured painter and decorator directing them in their work with the right to interrupt it held not supported by testimony.

4. WORKMEN'S COMPENSATION-CASUAL EMPLOYMENT.

The owner of a hotel is not pursuing his business within the meaning of the Workmen's Compensation Act when he causes rooms to be occasionally painted and decorated, although it is usual to have work of that nature done from time to time.

5. WORKMEN'S COMPENSATION-INDEPENDENT CONTRACTORS.

A painter and decorator undertaking to do work for a hotel company and employing others on such job was an independent contractor, and when injured not within the terms of the Act.

*Decision rendered, March 27, 1918. 166 N. W. Rep. 876.

Certiorari to Industrial Accident Board.

Proceedings under the Workmen's Compensation Act by Minnie A. Holbrook against the Olympia Hotel Company, employer, and the Hartford Accident & Indemnity Company, insurance carrier, to recover compensation for injuries resulting in the death of Arthur Lee Holbrook. The committee on arbitration refused to make an award, which finding was reversed on appeal to the Industrial Accident Board, and the employer and insurance carrier bring certiorari. Award set aside.

Argued before OSTRANDER, C. J., and BIRD, MOORE, STEERE, BROOKE, FELLOWS, STONE, and KUHN, JJ.

C. H. Ruttle, of Detroit (Guy W. Moore and Hal P. Wilson, both of Detroit, of counsel), for appellants.

Warren S. Stone, of Mt. Clemens, for appellee.

OSTRANDER, C. J. Arthur Lee Holbrook, a painter and decorator, living in Mt. Clemens, Mich., while doing some work in the hotel of the Olympia Hotel Company, in that city, on September 25, 1916, fell from a ladder, receiving injuries from which he died. His widow, the claimant, seeks to recover compensation under the statute. The committee on arbitration refused to make an award, but the finding was reversed on appeal. The industrial Accident Board found:

"(a) That the deceased was an employee of the respondent employer, and that the accident which befell him arose out of and in the course of his employment.

"(b) That the accident caused his death, and that it was the proximate cause of his death, which occurred a few hours after the accident.

"(c) That his employment was not casual, and that he was not a casual employee.

"(d) That the accident occurred and arose out of and in the course of the trade, business, and occupation of his employer, the Olympia Hotel Company.

"(e) That the applicant was solely dependent upon the deceased, and that she is entitled to all of the compensation.

"(f) That compensation should be paid by the respondents to the applicant for the period of 300 weeks at the rate of $10 per week.'

Plaintiffs in certiorari, in the petition for the writ, allege:

"(a) That Arthur Lee Holbrook was an independent contractor, and not an employee of the Olympia Hotel Company. and as an independent contractor is not entitled to compensation under the terms of the Workmen's Compensation Act.

"(b) That the Industrial Accident Board erred in conclusions of law above set forth and erred in its findings hereinbefore complained of."

It is said in the casual is waived.

brief that the point that the employment was To determine whether the deceased was an

independent contractor, a mixed question of fact and law, requires examination of the testimony, all of which is returned. This discloses that the Olympia Hotel Company conducts a hotel. That is its business. The building in which the business is carried on seems to be of considerable size. The rooms were renovated occasionally with paint and paper, and it was the practice of the management to have the necessary work done, in one or in several rooms, as the business of the hotel permitted. Usually, at least, there was a period of time in spring and another period in the autumn, during which periods most of the work was done. When necessity demanded or convenience permitted the renovation of a room or of rooms, the management secured the services of a painter to do the work, furnishing the material, but not the tools for doing it. For a year or more prior to his death Mr. Holbrook was the man to whom the doing of the necessary work was confided.

Mr. Holbrook carried on the business of painting and decorating, employing men, as many as eight at one time. Occasionally he contracted to do a particular piece of work for an agreed sum, but most of his work was done, as all of it for the Olympia Hotel Company, by the hour. He carried on different jobs at the same time, using his men on one or other of them as he pleased, changing them from one job to another. He was carrying on more than one job at the time he was injured. He went from job to job, superintending his men and himself doing work. He hired the men; they regarded him as employer, looked to him for their pay, and he paid them.

There was no written contract between Holbrook and the hotel company. He was not carried on the pay roll as an employee of the company, nor was he otherwise than as stated in the service of the company. There was no understanding that he was personally to do any work. He was to get the work done, had absolute charge of it and of the men employed, the results to be satisfactory to the hotel company. By this latter statement is meant that in practice one, two, or more coats of paint might be ordered in a particular room until it looked good to the management, or a tint or color, use of which had been begun, might be ordered changed to suit the taste of the management. Impliedly, of course, he undertook to do a job in a proper, workmanlike manner. He rendered bills for the work done, which bills specified the total number of hours he and his men had worked, but not how many hours each had worked nor who were the men who worked. Some days Mr. Holbrook worked at the hotel a few hours while his men, or some of them, worked many hours. When he was absent, one of his men was left in charge and direction of the others and the work. Uniformly, by agreement, he charged 35 cents an hour for all work done, whether by himself or others, and he paid his men 30 cents an hour.

There is no dispute about the facts. There is no testimony tending to prove that the hotel company controlled or reserved the right to control the men, or the way in which they should do this work. The case presented by the facts is the common one of the house owner and the painter who do not contract to have done and to do a particular job for a lump sum, but do contract to have done and to procure to be done certain work at a stipulated price per hour for the time employed. Nothing is more common, nowadays, than for the house owner to engage some man whose business it is to see that certain desired painting, decorating, paper hanging is done in and about his house, or to see that storm houses and storm windows are put up in the autumn and taken down in the spring, when screens and awnings are installed in place or them, or to mow and trim the lawn. If the man once engaged produces the desired results for a fair sum, he is employed, if it is possible, year after year to do the work-to see that it is done. Nothing is more common than to charge and pay for such work a price per hour of time employed in doing it. Often the man engaged, who is responsible for results, does not do the work himself and is not expected to do it. He has facilities, has men, has tools, and often has several jobs progressing at one time.

[1] The facts being undisputed, the question presented is a question of law. In the opinion given by the board it is said:

"Under the manager of the hotel, Matthews, Mr. Holbrook operated as a foreman for the hotel company covering that class of work. He also acted for the hotel company as a sort of paymaster in paying off the men. He kept their time and knew how many hours each put in. He took the money from his employer, the Olympia Hotel Company, and distributed to each man the part that belonged to each man and kept the remainder for his services. The hotel company and all the men understood the arrangement and were satisfied with it. We have not quoted all of the testimony on the subject of the status of Mr. Holbrook, but we have quoted sufficient to show, in our judgment that the deceased was not an independent contractor, but that he was an employee of the respondent hotel company. In Tuttle v. Embury-Martin Lumber Co. [192 Mich. 385] 158 N. W. 879, our Supreme Court said: 'We are of the opinion that the test of relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent.'

"It is said in 36 Cyc. at page 966: The relation of master and servant exists wherever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished; or, in other words, not only what shall be done, but how it shall be done.'

"In Cyc. 1546, an independent contractor is defined as: 'One