Karas v. Klein

• Decision Date: 18 March 1947
• Docket Number: Civ. No. 1172.
• Parties: KARAS v. KLEIN et al.
• Court: U.S. District Court — District of Minnesota

70 F. Supp. 469

KARAS v. KLEIN et al.

Civ. No. 1172.

District Court, D. Minnesota, Third Division.

March 18, 1947.

Victor E. Anderson, U. S. Atty., and James J. Giblin, Asst. U. S. Atty., both of St. Paul, Minn., for plaintiff.

Allen L. Gray, of St. Paul, Minn., for defendants.

DONOVAN, District Judge.

This proceeding was commenced by petitioner for the purpose of requiring respondents to reinstate him in the position he occupied with them before entering the military service, and to recover losses of wages and benefits, pursuant to the Selective Training and Service Act of 1940, as amended, 56 Stat. 724, 50 U.S.C.Appendix § 308(e), hereinafter, for convenience, referred to as the Act.

Respondents by their answer deny that petitioner was ever employed by them and allege that petitioner was an independent contractor.

At the trial before the court the facts disclosed that petitioner was inducted into the Naval forces of the United States at Fort Snelling, Minnesota, on February 9, 1944, and served therein for the period of one year, eight months and eleven days, following which he received an honorable discharge, on October 19, 1945.

Prior to said induction, and in or about March, 1943, he commenced hauling "rubbish" for respondents and certain other individuals. He furnished his own truck, gasoline and repairs in that connection. The work performed by him for respondents arose out of what petitioner described as "a deal" made with their manager to haul away such rubbish, including discarded wooden crates, boxes and paper cartons, from three of their stores at an agreed price, payable monthly in cash, following which he would execute and deliver a receipt therefor. Respondents furnished brooms, containers and hand trucks for the removal of said material, and at times directed the doing of the work.

Petitioner's sales of material thus picked up became somewhat lucrative. He testified that he averaged $140 per month on the sale of crates, boxes, waste paper and cartons which he obtained among rubbish hauled from respondents' several places of business. His industry resulted in so much work that he hired an assistant at $80 per month. His total earnings as a result of the "deal" amounted to about $400 per month. All of the work performed for respondents by petitioner was done on his own time, and to engage in such business he was required to obtain a license from the City of St. Paul.

Respondents had about two hundred employees in their business, and privileges enjoyed by them as such were not extended to petitioner.

Upon petitioner's return from the military service he applied for reinstatement and learned that respondents had engaged some one else to haul rubbish for their stores, and with whom they were reluctant to part. They did ask petitioner, however, whether he would consider terms more favorable to them. He refused.

The sole issue here is whether or not petitioner held a position with respondents prior to his induction into the Naval service requiring reinstatement under the Act.

Respondents contend petitioner was:

(a) an independent contractor and hence did not hold a position with them; but assuming petitioner did hold a position within the Act, then

(b) he was guilty of laches in pursuing his remedy; further

(c) he has obtained other employment compensating him in excess of that paid him by respondents; and, in any event

(d) respondents have so changed their positions since petitioner went into service as to make it impossible and unreasonable to restore petitioner to the same status that existed prior to his induction into the Naval forces.

Determination of the questions here presented necessitates that the Act "be liberally construed for the benefit of those who left private life to serve their country in its hour of great need". Fishgold v. Sullivan Drydock & Repair Corp. et al., 328 U.S. 275, 66 S.Ct. 1105, 1111.

In Boone v. Lightner et al., 319 U.S. 561, 575, 63 S.Ct. 1223, 1231, 87 L.Ed. 1587, the court said: "The Soldiers' and Sailors' Civil Relief Act 50 U.S.C.A. Appendix, § 501 et seq. is always to be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation. * * *"

Was petitioner an independent contractor to the extent claimed by respondents, or does he come within the beneficent purposes of the Act? Under the facts of the case petitioner, in my opinion, was occupying "a position, other than a temporary position, in the employ" of respondents at the time he was inducted into the Naval forces. That respondents in good faith assumed that he was not an employee in the sense commonly understood is obvious. Everything they did suggests this. He was not treated by them as an employee. But while this is evidence tending to prove his status to be that of an independent contractor, it is not conclusive. Birmingham v. Bartels et al., 8 Cir., 157 F.2d 295; Walling v. Twyeffort, Inc., 2 Cir., 158 F.2d 944; MacMillan v. Montecito Country Club, Inc., D. C., 65 F.Supp. 240; Lee v. Remington Rand, Inc., D. C., 68 F.Supp. 837; Rait v. New England Furniture & Carpet Co., 66 Minn. 76, 68 N.W. 729; Schullo v. Village of Nashwauk, 166 Minn. 186, 207 N.W. 621; Korthuis v. Soderling & Sons, 218 Minn. 342, 16 N.W.2d 285; Clark v. Housing Authority, Wash., 1946, 171 P.2d 217.

The controlling test characterizing the relationship of the parties is clearly stated by Judge Johnsen in Birmingham v. Bartels et al., supra, 157 F.2d at page 300, as follows: "The crux of the common-law distinction between an employer-employee relationship and an independent-contractor status is in the right of the person for whom the services are performed to control the person performing them, `not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished' (Treasury Regulations, supra), or in other words `not only to direct what shall be done, but how it shall be done' (New Orleans, M. & C. R. Co. v. Hanning, 15 Wall. 649, 657, 82 U. S. 649, 657, 21 L.Ed. 220). It is not necessary that the employer actually shall direct the manner in which the services are performed, but `it is sufficient if he...