Van DeGarde v. Osceola County Co-op. Creamery Ass'n

• Decision Date: 16 June 1942
• Docket Number: 45959.
• Parties: VAN DEGARDE v. OSCEOLA COUNTY COOPERATIVE CREAMERY ASS'N et al.
• Court: Iowa Supreme Court

4 N.W.2d 234

232 Iowa 51

VAN DEGARDE v. OSCEOLA COUNTY COOPERATIVE CREAMERY ASS'N et al.

No. 45959.

Supreme Court of Iowa

June 16, 1942

L L. Corcoran, of Sibley, for appellant.

Meltzer & Vogl, of Sibley, and Shull & Marshall, of Sioux City, for appellees.

WENNERSTRUM Justice.

Claimant-appellant William M. Van DeGarde, seeks to recover a workmen's compensation award against the appellee, Osceola County Cooperative Creamery Association, claimed employer, and its insurance carrier, for an injury received. The appellee Association asserts as a defense that claimant is not an employee but that he is an independent contractor. The appellee also alleges that the injuries received by the appellant did not arise out of and in the course of his claimed employment. Appellant's application for compensation was denied by the Deputy Industrial Commissioner whose holdings and conclusions upon review by the Industrial Commissioner were confirmed and approved. Appellant then appealed to the district court of Osceola County, Iowa, which court affirmed the decision of the Industrial Commissioner. Claimant-appellant has appealed to this court for a review of the decision of the trial court.

The facts as shown by the record before us are as follows:

On January 10, 1939, the appellant was injured while engaged in his work of collecting and delivering cream to the Osceola Cooperative Creamery of Sibley, Iowa. On that date he slipped and fell on ice while taking a cream can from a cooler located on a farm where he had stopped. The diagnosis of the doctors showed that his injuries consisted of a sacroiliac sprain.

The relations between the claimant and the Osceola Cooperative Creamery Association which bear upon the question as to whether or not the claimant was an employee or an independent contractor are as follows:

Appellant owned the truck which he operated and paid for his own gas oil and its upkeep. He also paid for all liability and truck insurance and paid out of his own resources and income for any part time helper that he might use. He had been engaged in the work of cream hauling for the defendant association for approximately 13 or 14 years and the inception of this relationship was brought about by the purchase of an established cream route from another hauler. The association did not furnish any of the equipment used by the hauler with the exception of the cans in which the cream was delivered to the creamery. The cream was tested at the creamery for butter fat and the hauler was paid a commission according to the amount of butter fat for the service rendered in delivering the cream. The commission was increased in relation to the distance of the haul. The member customers of the association were paid every two weeks by the creamery for the cream received from them and brought in by the hauler. Checks were delivered by the owner or driver of the cream route. The amount of the commission paid to the hauler for handling the cream was deducted from the check. As a convenience to the customers, haulers frequently advanced their own cash to the customer for the cream received. The creamery association did not have any control over the working hours of the cream haulers, although each hauler was expected to get his collection of cream into the creamery as early as possible each day. The record further discloses that in the event the hauler desired to discontinue his services in connection with the collection of cream he could sell his route and equipment to any other person at such a price as he could obtain. However, the association reserved the right to investigate the "character, ability, suitability and...