Great Atlantic & Pac. Tea Co. v. Hattle

• Decision Date: 12 May 1931
• Citation: 236 N.W. 575,205 Wis. 7
• Court: Wisconsin Supreme Court
• Parties: GREAT ATLANTIC & PACIFIC TEA CO. v. HATTLE ET AL.

205 Wis. 7

236 N.W. 575

GREAT ATLANTIC & PACIFIC TEA CO.

v.HATTLE ET AL.

Supreme Court of Wisconsin.

May 12, 1931.

Appeal from a judgment of the Circuit Court for Dane County; A. G. Zimmerman, Circuit Judge.

Action by the Great Atlantic & Pacific Tea Company against Catherine Hattle and the Industrial Commission of Wisconsin to vacate an award for the death of Robert Hattle. From judgment affirming the award, plaintiff appeals.--[By Editorial Staff.]

Affirmed.

ROSENBERRY, C. J., dissenting.

Action commenced April 15, 1930, to vacate an award for compensation under the Compensation Act for the death of Robert Hattle. Plaintiff appealed from a judgment entered November 5, 1930, affirming the award.

At all times involved in this action, plaintiff was engaged in the grocery business in Wisconsin and elsewhere, and was an employer subject to the Compensation Act of this state. It purchased butter produced at a creamery in Baraboo, Wis., at a price f. o. b. creamery, and for a time shipped it by rail to Chicago. Subsequently it desired to have the butter hauled by truck to its warehouse in Milwaukee, and at its request the manager of the creamery sent several applicants for the trucking job to plaintiff's Milwaukee offices, where one Burrows was engaged to do the hauling at a rate of 48 cents per cwt. After a time Burrows quit, and the creamery manager spoke to Arnold Arndt about hauling the butter. Arndt purchased a truck, and on June 30, 1927, delivered a load of butter at plaintiff's warehouse in Milwaukee. There plaintiff's traffic manager asked Arndt whether he was going to haul “our” butter. Arndt replied “Yes,” and plaintiff paid him for the trucking at the rate of 48 cents per cwt. Arndt continued to perform that service until Hattle was killed, in November, 1929, while trucking a load of butter to plaintiff's Milwaukee warehouse.

During that two and one-half year period, Arndt had hauled butter whenever plaintiff informed the creamery manager that a load was wanted at Milwaukee, and plaintiff had averaged about two loads per week. It took twenty-two hours to make the two round trips, and on a few of the return trips Arndt had hauled freight for others. He also did some trucking in and about Baraboo for other parties.

Quarles, Spence & Quarles, of Milwaukee (Arthur B. Doe, of Milwaukee, of counsel), for appellant.

John W. Reynolds, Atty. Gen., Mortimer Levitan, Asst. Atty. Gen., and Hill & Miller, of Baraboo, for respondents.

FRITZ, J.

The facts as stated above are not in dispute. Plaintiff takes exception to the award because the Industrial Commission found and concluded that Arndt was a contractor under the plaintiff; that the service which Hattle was performing when injured and which grew out of and was incidental to his employment by Arndt, was performed in pursuance of the contract between the plaintiff and Arndt; and that therefore plaintiff, as an employer subject to the Compensation Act, was liable by reason of the provisions of section 102.06, Stats., for compensation for the injuries which Hattle sustained, as an employee of a contractor who was not subject to the Compensation Act, while performing services as to which plaintiff would have been liable for compensation to Hattle if he had been working directly for plaintiff. Plaintiff contends and assigns as error that Arndt was not a contractor within the contemplation of section 102.06, Stats., because he was a common carrier, or his relationship to the plaintiff was analogous to that of a common carrier; and also that the provisions of section 102.06, Stats., are unconstitutional.

Section 102.06, Stats., so far as now material, provides: “An employer subject to the provisions of section 102.03 to 102.34 shall be liable for compensation to an employee of a contractor or subcontractor under him who is not subject to sections 102.03 to 102.34, or who has not complied with the conditions of subsection (2) of section 102.28 in any case where such employer would have been liable for compensation if such employee had been working directly for such employer.”

[1][2][3] Although no formal written contract was ever entered into between plaintiff and Arndt, the latter, with the knowledge of plaintiff, and for its exclusive use and benefit, regularly made two trips per week for two and one-half years, trucking all of the butter which it purchased at Baraboo; and plaintiff paid Arndt for that service at a fixed rate. While the butter was in transit and Arndt's truck was in use solely for the plaintiff, there certainly existed a contractual relationship between Arndt and the plaintiff, regardless of whether the contract was express or implied. By reason of that contractual relationship with plaintiff, Arndt, when actually performing services exclusively for plaintiff, was either an independent contractor, or an employee of plaintiff for hire. If his relationship to plaintiff was that of an employee under a contract of hire, express or implied, and Arndt in that capacity employed Hattle nineteen days to help or assist him, so that plaintiff had actual or constructive knowledge of Hattle's employment, then, by virtue of section 102.07 (4), Stats., Hattle, as a helper or assistant of Arndt, is considered, as a matter of law, an employee of plaintiff within the protection of the Compensation Act; and that would be sufficient to sustain the award.

On the other hand, if Arndt was an independent contractor, it does not follow that he was a common carrier because he transported freight for hire, and that as a common carrier he and Hattle, as his employee or assistant, were excepted from the Compensation Act because of section 102.08 (4), Stats., relating to common carriers and their employees. Arndt was merely a private carrier, who performed only such transportation services as he was willing to perform for such shippers, and for such compensation, and at such times, and between such termini as were from time to time expressly or impliedly understood or agreed upon between the parties interested. Really, the only respect in which his activities were similar to those of a common carrier was that he transported freight for compensation. He did not operate between fixed termini or over a regular route, or upon any schedule. The nearest approach to regularity in his service was that he averaged two hauls per week for the plaintiff, and that plaintiff continued to compensate him at the same rate, although neither was under any obligation to continue either the service or the rate of compensation. He had no established uniform rates or tariff basis. He had not offered to accept, indiscriminately, all freight tendered for transportation; and he was not obliged to serve all shippers. He could serve or decline to serve, as he saw fit, and he could charge as he agreed with those whom he elected to serve. None of those distinctive characteristics of a common carrier (Independent Tug Line v. Lake Superior L. & B. Co., 146 Wis. 121, 127, 131 N. W. 408;Waldum v. Lake Superior T. & T. Co., 169 Wis. 137, 170 N. W. 729) existed in relation to Arndt's operations. On the contrary, his services were of such private character that they did not even render him subject to the control which the railroad commission is authorized, by section 194.01 (6), Stats., to exercise over public automobile transportation when it is similar to that afforded by common carriers, such as street or interurban railways.

[4] It is probably true, as plaintiff contends, that section 102.06, Stats., was not intended to make an employer liable to the injured employees of every one with whom the employer had some sort of contractual relations. Thus, in Deep Rock Oil Co. v. Derouin, 194 Wis. 369, 216 N. W. 505, it was held that an employer who was also a lessor was not liable for compensation to an employee of his lessee, although by...