Nestle's Food Co. v. Indus. Comm'n

• Decision Date: 12 June 1931
• Citation: 237 N.W. 117,205 Wis. 467
• Parties: NESTLE'S FOOD CO. ET AL. v. INDUSTRIAL COMMISSION ET AL.
• Court: Wisconsin Supreme Court

205 Wis. 467

237 N.W. 117

NESTLE'S FOOD CO. ET AL.

v.INDUSTRIAL COMMISSION ET AL.^a1

Supreme Court of Wisconsin.

June 12, 1931.

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

Action under the Workmen's Compensation Act by the Nestle's Food Company, employer, and the Liberty Mutual Insurance Company, insurer, to review an award of the Industrial Commission in favor of Meta Schroeder, widow, for the death of William Schroeder, employee. From a judgment reversing and setting aside the award, and dismissing the application, petitioner appeals.--[By Editorial Staff.]

Reversed and remanded, with directions.

William Schroeder was killed on the 12th of March, 1928, while engaged as a milk hauler for Nestle's Food Company. He left him surviving the appellant and a child. The Nestle's Food Company was subject to the Compensation Act of Wisconsin. The deceased, a farmer living in the territory where milk was purchased by Nestle's Food Company, had signed the following agreement:

“Nestle's Food Company Inc.,

Reedsburg, Wis.

I have contracted with certain milk producers in the territory of Route No. --of your condensary at Reedsburg to collect their milk and deliver the same for them to your receiving platform at Reedsburg. For convenience, the producers have agreed with me that my haulage may be deducted by you from the monthly sums due the producers and they will authorize you to pay the same to me at 20¢ per cwt. which you guarantee to me shall average not less than $4.00 per round trip. I am free to select the means of effecting such deliveries and may select any employe or employees I choose to perform the work, provided no person is employed by me contrary to the laws of the state of Wisconsin, and my only obligation to you in consideration of your guaranty will be that I make prompt and proper delivery of the milk sold to you on said route.

This arrangement between us may be terminated by either party on ten days' written notice to the other.

Nestle's Food Company, Inc.,

By Roy G. Writer, Supt.”

“Wm. Schroeder,

Hauling Contractor.”

The Nestle's Food Company have a field man who contracts with the farmers for the purchase of their milk. The company and the farmer agree on the sale of milk to the company for which he is to receive pay at the current rate paid by the Nestle's Food Company, less 20 cents per cwt. if the farmer does not deliver the milk at the factory. The company then divides the territory into routes, and letters them A, B, C, etc. A hauler is then employed and assigned a route; the hauler furnishes his equipment. The testimony of agents of the company on the relation between the “hauler” and the company is:

“Q. You look up the haulers to see that there is a hauler for each route, do you not? A. Yes.

Q. You make the arrangements with the hauler and not with the farmer, do you not? A. Yes. I would say that was the case, although the farmers have objected to haulers and suggested to us they wanted to haul their own milk. The usual course of procedure is to enter into this milk contract with the producers and direct some hauler to call for the farmer's milk. We arrange with some hauler to pick up the milk. The producer can haul his own milk if he wants to. The ordinary procedure is to tell the hauler to call for the milk of the farmer on a certain route; that is the usual custom. * * *

Q. Who made the arrangement with Schroeder? A. I believe that Mr. Reppin, our general man at that time. * * * If there was a route without a hauler we would endeavor to haul the milk on that route at the regular deduction rate.”

The Industrial Commission held that Schroeder and the company were both subject to the provisions of the Compensation Act, and that the liability of the company was insured by the Liberty Mutual Insurance Company; that on the date of his death Schroeder was in the employ of the company on a basis equivalent to an annual wage of $1,200; that, while performing services growing out of and incidental to his employment, he accidentally sustained personal injury resulting in his death; that Meta Schroeder, the appellant here, is entitled to a death benefit in the amount of $4,800, of which $1279.20 accrued October 8, 1929, and ordered the balance of $3,520.80 to be paid in monthly installments of $67.60. Thereafter the company commenced an action in the Dane county circuit court to review the award, and it was there adjudged that the award of the Industrial Commission be in all respects reversed and set aside and the application dismissed. From this judgment petitioner appealed.

Hill & Miller, of Baraboo, for appellant.

Otjen & Otjen, of Milwaukee, for respondent.

John W. Reynolds, Atty. Gen., and Mortimer Levitan and Herbert H. Naujoks, Asst. Attys. Gen., for defendant.

FAIRCHILD, J.

[1][2][3][4][5] There are certain characteristics of the relation of an independent contractor and principal that may be found in the relation which exists between employer and employee. In such instances under the Workmen's Compensation Law the writings attempting to define the status of the parties and all the surrounding circumstances must be treated together in order to determine the exact relation which has resulted from the dealings between the parties. Kneeland-McLurg Lumber Co. v. Industrial Commission, 196 Wis. 402, 220 N. W. 199. The amount involved or the length of time required to complete the contract or render the service is not necessarily a determining factor. When one has a continuing task, the performance of which is necessary to the successful operation of his business, it being one usually attended to by an employee, if the one engaged to do it performs this task in the usual manner of one so employed, a relationship of employer and employee results which cannot be changed into that of contractor and principal by the mere use of words in a written instrument. The writing is important evidence, but not controlling. The writing in this case contains phrases calculated apparently to characterize Schroeder as an independent contractor, but it also contains words which warrant the...