O'Connor v. American Mut. Liability Ins. Co.

• Decision Date: 23 April 1956
• Docket Number: No. 20782,20782
• Parties: Gerard G. O'CONNOR v. AMERICAN MUTUAL LIABILITY INS. CO.
• Court: Court of Appeal of Louisiana — District of US

Page 16

87 So.2d 16

Gerard G. O'CONNOR v. AMERICAN MUTUAL LIABILITY INS. CO.

No. 20782.

Court of Appeal of Louisiana, Orleans.

April 23, 1956.

Kenneth V. Ward, New Orleans, for plaintiff-appellant.

Alfred C. Kammer, New Orleans, for American Mut. Liability Ins. Co., defendant and appellee. Chaffe, McCall, Phillips, Burke & Hopkins, New Orleans, of counsel.

Oliver S. Delery, New Orleans, for Board of Adm'rs of Charity Hospital of Louisiana at New Orleans, intervenor.

McBRIDE, Judge.

Gerard G. O'Connor, alleging that when he was shot by a bandit on April 15, 1955, he was in the employ of Elmer's Fine Foods, Inc., brings this suit against its workmen's compensation insurer for compensation at the rate of $30 per week for 400 weeks. It is represented that the injuries arose out of the employment and rendered him totally and permanently disabled from doing work of any reasonable character. Plaintiff prays also for an allowance for medical expenses and for statutory penalties (under LSA-R.S. 22:658) for defendant's failure to pay him compensation as it became due. Defendant denies liability for any compensation whatever; that O'Connor was an employee of Elmer's Fine Foods, Inc., is specially denied.

After a trial on the merits of the case, the suit was dismissed and plaintiff has appealed. The judgment also dismissed the intervention which had been filed by Board of Administrators of Charity Hospital of Louisiana at New Orleans claiming $185.70 which represented the cost of medical care and hospitalization furnished plaintiff, but as no appeal was taken from that part of the judgment, the said incidental demand is no longer a part of the case.

Plaintiff's business connection with Elmer's Fine Foods, Inc., commenced on April 11, 1955, when he called at the office of said concern seeking a 'selling job' and was referred to Joseph Elmer, its vice-president and general manager. Plaintiff acquainted Mr. Elmer with the fact he was an experienced route worker, but was told there were no route openings just then. However, Mr. Elmer stated that if plaintiff would be willing to undertake the building up of a route of his own, he would be treated the same as the other routemen. Plaintiff made it plain that he was without funds and could not even finance the original merchandise he was to handle. Mr. Elmer thereupon told him that in order to help him get started and also hoping to augment the company's sales, he would permit plaintiff to utilize an old automobile the company owned but did not use. He also stated that he would furnish fuel for the truck and supply the merchandise. O'Connor was given to understand that he could call on prospective customers within the city of New Orleans, except he was not to solicit certain establishments, such as supermarkets, with which Elmer's Fine Foods, Inc., had special arrangements.

Plaintiff accepted the offer. Each day there was turned over to him a quantity of merchandise which, after being inventoried, was loaded by plaintiff aboard the truck. He went out with the truck and canvassed likely establishments on April 11, 12, 14 and 15, 1955, and at about 12 o'clock noon on the last mentioned date he was help up and shot in the left wrist by a colored youth who made off with his sales receipts. The assault took place while plaintiff was in the act of calling on a customer.

At the conclusion of each day he worked, plaintiff would return to the office of the company, account for all unsold merchandise, and turn in to the company's representative the day's receipts for sales made. The 'sales slips' would be checked and the company's representative would pay him a 20 per cent commission on the gross amount of his sales.

O'Connor's duties entailed more than just calling on retail establishments and making sales. The company required him to keep certain written records. For instance, with each sale he had to fill out sales slips in duplicate on blanks furnished by the company, one of which was given to the customer and the other was turned in at the end of the day. Then there was the leather route book into which O'Connor had to enter the names and addresses of the customers and list the establishments at which he placed racks. We understand these racks, made of wire, are furnished by Elmer's Fine Foods, Inc., to the retailer for displaying merchandise.

The record shows another feature of the relationship between the parties which seems to us to be of marked significance. On occasions a customer along the route would ask for a product or article not carried by Elmer's Fine Foods, Inc. Joseph Elmer admits that on such occasions in 'an effort to help' O'Connor, he would secure the merchandise desired by the customer from whichever concern handled it and turn it over to O'Connor for delivery to the customer. Apparently O'Connor was not informed of the price at which Mr. Elmer purchased such merchandise, but after selling it to his customer he would remit the full proceeds of the sale along with the proceeds from his regular sales. On such transaction defendant paid him the usual commission of 20 per cent of the amount of the sale.

The initial question presented for determination is whether O'Connor occupied the status of an employee or was engaged in reselling products which he bought from Elmer's Fine Foods, Inc., as an independent merchant.

A decision on the question whether a worker is an employee within the meaning of the Workmen's Compensation Statute or is to be placed within another category is not always easy to reach. Scarcely any general test can be applied to the cases. Power of control and superintendence and the right to 'fire' or discharge by the employer are usually standards for making the test, but the Supreme Court has said the better policy is to judge each case on the circumstances and let the principle of stare decisis govern. See Bell v. Albert Hanson Lumber Co., Limited, 151 La. 824, 92 So. 350. Usually where the right to direct or control exists there is to be found the employee relationship, but merely because a manufacturer or wholesaler assigns to a peddler or to a retailer a certain territory and limits the sales to that territory does not of itself show that he is an employee. Nor does the fact that a manufacturer or wholesaler retains the right to discontinue selling to a retailer, which would be tantamount to discharging him, justify the conclusion that the retailer is his employee. See our discussion of these points in Buettner v. Polar Bar Ice Cream Co., Inc., La.App., 17 So.2d 486.

In analyzing the facts of each particular case, it is necessary to consider, in addition to the power of control and supervision and the employer's right to discharge, such things as whether the claimant earned wages, or that he was or was not hired by the job rather than by the hour, day or week, or that he did not furnish his own transportation, or that he was or was not carried on the payroll. No one of these factors is conclusive. However, the circumstances revealed by the instant record, although if each stood alone it possibly might not make it certain that the employee relationship actually existed, present a formidable chain of circumstances which goes far to demonstrate that plaintiff was an employee and not just an enterpriser buying and reselling merchandise for his own account. The circumstances we refer to are plaintiff's selling of merchandise which Mr. Elmer bought for resale from other dealers and which plaintiff disposed of on a commission basis; the supplying of merchandise each morning to O'Connor without exacting payment therefor; the furnishing of the truck and the fuel therefor without cost or expense to plaintiff; the requirement that plaintiff make daily remittance of the full amount received from his gross sales; and the keeping of the records. Another requirement was that Mr. Elmer be kept 'posted' of plaintiff's whereabouts each day 'in case there was an emergency.' This latter feature of the contract between the parties shows one thing above all and that is that Elmer's Fine Foods, Inc., retained and exercised absolute and positive control and superintendence of the movements and activities of plaintiff. The language of the Court of Appeals of New York in Glielmi v. Netherland Dairy Co., Inc., 254 N.Y. 60, 171 N.E. 906, 907, fits the plight of O'Connor perfectly:

'* * * He is bound hand and foot as long as he works the route at all, his freedom an illusion, and his independence but a name.'

As against all of the above, the only element in the case which might appear to be favorable to defendant is the fact that O'Connor was not carried on the payroll of Elmer's Fine Foods, Inc., and that the usual withholdings for income, unemployment and social security taxes were not made. However, this is unimportant in view of the many factors pointed out above which show beyond doubt that plaintiff was in the employ of said concern.

A conclusion that O'Connor was an employee within the purview of the compensation statute is inescapable. In Buettner v. Polar Bar Ice Cream Co., Inc., supra, the deceased worked regularly as a peddler of ice cream manufactured by the defendant by buying it from defendant and selling it at a profit for a fixed price. The deceased's route was defined by agreement with defendant; he was subject to dismissal at any time; and the car he drove was financed through the defendant and bore the latter's advertising matter. We regarded deceased as an employee whose dependents were entitled to compensation.

We discern a close analogy between O'Connor and the plaintiff in Blackburn v. Chenet, La.App., 42 So.2d 288. The defendant there owned several mules and wagons which were used by various other persons in the peddling of fruit and vegetables; defendant provided the funds to each driver to purchase the stock. At the termination of each venture, out of the gross sales there was first refunded to defendant the amount he had...