75 Mich. App. 455, 255 N.W.2d 643 (1977)



V.J. BRENNAN, J. On September 27, 1974, plaintiffs Albert and Ardis Chester brought suit against defendants jointly and severally for injuries arising out of a dispute over wages between defendant Wyche and plaintiff Albert Chester while Chester was controller for defendant Detroit Wheels [hereafter Wheels]. Defendant World ) Football League [hereafter League] was joined as alleged co-employer of defendant Wyche. Motion for summary judgment was filed by defendants and granted by Wayne County Circuit judge Benjamin D. Burdick on January 30, 1976. He found the claim against Wyche and the Wheels was barred by the exclusive remedy provisions of the Workmen's Compensation Act. He found for the League on the same basis or, alternatively, because Wyche acted outside the scope of any possible agency with the League. Plaintiffs appeal as of right.


The incident giving rise to this litigation occurred on September 20, 1974. Plaintiff had been employed as controller of the Wheels through Kelly Services, Inc [hereafter Kelly]. Part of the arrangement meant that the Wheels would pay Kelly and Kelly would then pay plaintiff. However, plaintiff's deposition indicated that Kelly maintained no control over his time, duties or conduct with the Wheels.


Plaintiff had been working for the Wheels since July, 1974. Prior to September 20, 1974, the Wheels became insolvent and unable to meet their payroll. Thereupon, the League seems to have agreed to pay Wyche's salary.

The last paycheck Wyche received on September 20, 1974, came from the League.


On September 20, 1974, plaintiff was working at the offices of the Wheels. Wyche and some other football players entered and engaged plaintiff in discussion about back pay due the players. The conversation became heated and Wyche grabbed plaintiff by the arm, plaintiff claiming he was thereby injured.


Plaintiff first contends that the trial court erred by granting summary judgment for defendant Wheels. Plaintiff maintains that he was not, as a matter of law, an employee of defendant Wheels on September 20, 1974, and so was not precluded from bringing suit against them by the exclusive remedy provisions of the Workmen's Compensation Act.


Viewing the facts most favorably to plaintiff, we must disagree. Under the act, an employee is entitled to

compensation if he receives a personal injury, arising out of and in the course of his employment by an employer coverage by the act. In this case, there is no dispute that Chester was injured in the a course of his employment or that the Wheels were an employer covered by the act. What we must decide is the legal question of whether plaintiff was an employee of the Wheels within the meaning of the act.


The device used in Michigan to determine the existence of an employment relationship is the "economic reality" test. Generally, four factors are isolated: control, payment of wages, the right to hire and fire, and the right to discipline. Applying these factors to this case, we believe plaintiff was an employee of the Wheels.


The plaintiff in this case styles himself an independent contractor, removed from the control normally associated with an employee status. We see no distinction between the function plaintiff performed for the Wheels and similar high-level employees in other businesses who may have some control over the time, hours or duties of their employment. We believe summary judgment was properly granted in favor of defendant Wheels.


Plaintiff next argues that the trial court erred by granting summary judgment to defendant Wyche. He alleges that Wyche was not, as a matter of law, an employee of the Wheels on September 20, 1974, and so would not be protected by the exclusive remedy provisions of the Workmen's Compensation Act. We disagree.


We have determined that plaintiff was an employee of defendant Wheels for purposes of the Workmen's Compensation Act. We also recognize that defendant Wyche was an employee of the Wheels and that the act will bar suit against co-employees for injuries compensatable under the act. This bar operates where the injury occurs in the regular course of employment. Therefore, the question we must decide is whether this incident developed within the course of their employment.


We find authority for the position that "injuries received in assault, either sportive or malicious, are not, by reason of such fact alone, beyond the realm of compensability". We do not believe even a favorable interpretation of the facts indicate defendant Wyche's assault "so gross and reprehensible . . . as to constitute intentional and willful conduct". We feel the broad construction necessary and desirable for this provision justifies finding the assault within the course of the parties' employment. We perceive the incident as arising spontaneously from employee Wyche's attempt to collect salary from employee Chester. We find no error in granting summary judgment for defendant.


Plaintiff's second amended complaint against the WFL asserted two separate theories of recovery. First, plaintiffs contended that the WFL was vicariously liable for Wyche's battery under the doctrine of respondeat superior. The second theory of liability articulated by plaintiff was that the WFL was negligent, among other reasons, in keeping Wyche, a man purportedly of known violent propensities, within the WFL organization, provoking Wyche to violence by failing to act to satisfy his grievances and failing to act to prevent those grievances from arising.


(The Court held that there was no respondeat superior liability because Wyche was not an agent of the League ? However, the court held that the League might be liable under the second theory and thus reversed the trial court’s summary judgment for the WFL.)