Summary
In Employers Mut.Liab., for example, a claimant who had been laid off, recovered benefits for an injury he incurred on his employer's property while performing maintenance work on his own truck.
Summary of this case from IDE v. LABOR AND INDUSTRY REV. COMM.Opinion
No. 148.
Argued October 4, 1971. —
Decided November 2, 1971
APPEAL from a judgment of the circuit court for Dane county: HERBERT A. BUNDE, Reserve Circuit Judge, Presiding. Affirmed.
For the appellants there was a brief by Hart, Wightman Thurow and Walter D. Thurow, all of Madison, and oral argument by Walter D. Thurow.
For the respondent Department of Industry, Labor Human Relations the cause was argued by James P. Altman, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
This is an action to review an order of the Department of Industry, Labor Human Relations (hereinafter ILHR) which found that respondent, Bernard Hendrix, was an employee of the appellant Starline Trucking Corporation, that he was injured while performing services growing out of and incidental to his employment, and that he was entitled to benefits.
On January 24, 1968, Bernard Hendrix fell and broke his left leg, fracturing both the tibia and the fibula, in the truck parking area owned by Starline Trucking Corporation (hereinafter Starline).
Although the record does not clearly describe the extent of Starline's business, it appears it is a trucking company engaged primarily in construction and highway maintenance types of trucking work. Considerable sand and gravel is hauled during the construction months, and in the winter months some highway salting and snow removal is done. Starline has five or six dump trucks of its own and leases 14 or 15 more for use in its busy season.
The claimant, Bernard Hendrix, had been working exclusively for Starline since 1962, under a lease agreement.
In May of 1967, Hendrix purchased a three-axle 1967 dump truck. On May 5, 1967, Hendrix entered into a lease agreement with Starline for a period of one year. Under the terms of the lease and a union agreement, Hendrix was designated as an employee. The union agreement set forth the compensation Hendrix was to receive as an owner-driver. If Hendrix was to be paid an agreed amount for ton-per-mile as designated materials, Starline would deduct 10 percent of the gross receipts. The lease agreement provided that Hendrix would operate his truck under the Starline I.C. license. The truck was not licensed for January 24, 1968, but the record shows that a license could be obtained immediately for the month of January in the event that Hendrix received a call for a job. The agreement also provides that Hendrix would pay for the license, insurance, repairs and maintenance, gas, oil and other expenses concerning the truck. Starline would obtain and pay for these items initially and withhold these amounts from Hendrix's checks calculated on a monthly basis. Because Starline obtained the liability insurance in a fleet policy it was required that the truck be kept in Starline's parking lot when not in use.
On December 9, 1967, Hendrix was "laid off" by Starline. He applied for and received unemployment compensation which he was still receiving when he was injured. However, on every working day between December 9, 1967, and January 24, 1968, Hendrix went to the Starline office to see if work was available.
About 9 a.m., on January 24, 1968, Hendrix stopped in at Starline to see if there was work available that day. While he was waiting, Mr. Chally, a vice-president of Starline, asked Hendrix to take some tools out of another driver's truck which was to be repossessed later that day. The request was made at 11 a.m. Hendrix went to the truck, took the tools and an asphalt pan from the truck. He cleaned the tools with gasoline that he obtained from a Starline pump. After finishing this job he worked on his own truck, checking the tires and battery. He discovered that the insulation on one of the battery cables had worn thin. While walking to the garage to obtain a piece of rubber hose to act as an insulator, he slipped on a patch of ice, fell, and broke his left leg.
The circuit court entered a judgment affirming the order of the ILHR Department. Starline and its compensation carrier, Employers Mutual Liability Insurance Company appeal.
Two issues have been presented:
1. Was the claimant Bernard Hendrix an employee of Starline Trucking Corporation at the time of his injury?
2. Did the injury occur while Hendrix was performing services growing out of and incidental to his employment?
It is the position of Starline and its insurance carrier that Hendrix was not an employee within the meaning of the Workmen's Compensation Act at the time of the injury.
Sec. 102.07, Stats., of the Workmen's Compensation Act defines employee.
Sec. 102.07(4), Stats., is a general definition of employee and is as follows:
"Every person in the service of another under any contract of hire, express or implied, all helpers and assistants of employes, whether paid by the employer or employe, if employed with the knowledge, actual or constructive, of the employer, including minors (who shall have the same power of contracting as adult employes), but not including (a) domestic servants, (b) any person whose employment is not in the course of a trade, business, profession or occupation of his employer, unless as to any of said classes, such employer has elected to include them. Item (b) shall not operate to exclude an employe whose employment is in the course of any trade, business, profession or occupation of his employer, however casual, unusual, desultory or isolated any such trade, business, profession or occupation may be."
Sec. 102.07(8), Stats., was enacted in 1939, several years after the enactment of the original act. It describes independent contractors who are to be classified as employees. This subsection provides as follows:
"Every independent contractor who does not maintain a separate business and who does not hold himself out to and render service to the public, provided he is not himself an employer subject to this chapter or has not complied with the conditions of subsection (2) of section 102.28, shall for the purpose of this chapter be an employe of any employer under this chapter for whom he is performing service in the course of the trade, business, profession or occupation of such employer at the time of the injury."
The ILHR Department in its brief in this court takes the position that evidence in the record supports the finding that Hendrix was an employee of Starline under both subs. (4) and (8) of sec. 102.07, Stats.
While we do not dispute the proposition that Hendrix could be an employee for workmen's compensation purposes under either subsection, we do not believe it is necessary to make this determination in this case because we are of the opinion that Hendrix was a so-called "statutory employee" under sec. 102.07(8), Stats.
If we were to determine whether Hendrix was an independent contractor or a common-law employee because the evidence did not include all of the requirements of a statutory employee, we would apply the tests as they are set forth in Ace Refrigeration Heating Co. v. Industrial Comm. (1966), 32 Wis.2d 311, 315, 145 N.W.2d 777; and Prentice v. ILHR Department (1968), 38 Wis.2d 219, 222, 223, 156 N.W.2d 482.
As we read sec. 102.07(8), Stats., three qualifications must appear before an independent contractor can be classified as an employee for workmen's compensation purposes — (1) he "does not maintain a separate business," (2) he "does not hold himself out to and render service to the public," and (3) "he is not himself an employer subject to this chapter."
The evidence here reveals that Hendrix had worked under lease agreements for Starline and no one else for the past six years. This fact satisfies the requirement he did not maintain a separate business. There is no evidence that Hendrix held himself out to render service to the public. Again the fact that he worked only for Starline for the past six years is quite conclusive. There is no evidence that Hendrix ever employed more than one person, and then only a temporary substitute driver. He was not therefore subject to the Workmen's Compensation Act as an employer.
We conclude that Hendrix was a statutory employee, as defined by sec. 102.07(8), Stats., at the time of his injury.
The second issue is whether Hendrix was performing services growing out of and incidental to his employment at the time of injury and whether the accident causing injury arose out of the employment. There are two statutory requirements which an injured person must fulfill in order to qualify for workmen's compensation. Sec. 102.03(1), Stats., provides:
"(1) Liability under this chapter shall exist against an, employer only where the following conditions concur:
". . .
"(c) 1. Where, at the time of the injury, the employe is performing service growing out of and incidental to his employment. Every employe going to and from his employment in the ordinary and usual way, while on the premises of his employer, or while in the immediate vicinity thereof if the injury results from an occurrence on the premises, shall be deemed to be performing service growing out of and incidental to his employment; . . .
". . .
"(e) Where the accident or disease causing injury arises out of his employment."
It is clear that the department's determination that Hendrix was performing service for Starline when the employment-connected injury took place will be vacated only if no credible evidence exists to support that conclusion. R.T. Madden, Inc. v. ILHR Department (1969), 43 Wis.2d 528, 169 N.W.2d 73. It is also clear that the phrase "growing out of and incidental to his employment" as used in sec. 102.03(1)(c) 1, Stats., is broader than the common-law "scope of employment." Butler v. Industrial Comm. (1953), 265 Wis. 380, 61 N.W.2d 490.
This court has held on many occasions that "performing service growing out of and incidental to his employment" includes activity that is reasonably required by the terms and conditions of his employment. Kimberly-Clark Co. v. Industrial Comm. (1925), 187 Wis. 53, 203 N.W. 737 (award affirmed which was granted to an employee making a tool box for his personal tools); Frint Motor Car Co. v. Industrial Comm. (1919), 168 Wis. 436, 170 N.W. 285 (affirmed award given for the death of a racing car mechanic who disobeyed employer and went to help employer's stalled car); Anderson v. Industrial Comm. (1947), 250 Wis. 330, 27 N.W.2d 499 (affirmed award where a lad, hired for another job, attempted to grease the gears of a rock crusher without orders to do so. He had been subsequently injured by the crusher); Fels. v. Industrial Comm. (1955), 269 Wis. 294, 69 N.W.2d 225. In Fels, an employee damaged his own truck which was used to haul gravel for his employer. The employee took the truck into a garage for repairs. The employee was injured while attempting to remove the spring on his truck. This court stated at pages 297, 298:
"This court has often said that the Workmen's Compensation Law must be liberally construed to include all service that can be reasonably said to come within it. [Cases cited.] . . .
"`The testing and repairing of machinery used in promoting the business of an employer is a service that is within the scope of the employment, regardless of the question whether the machine belongs to the employer or is merely used by it to transact its business.'"
In this case, Hendrix was required to maintain his truck (Sec. 4 of the Lease Agreement) as a condition of his employment. He was also required to keep the truck in Starline's parking lot. He was in the process of fixing a worn battery cable in his truck when he went to obtain a rubber hose to insulate the cable. He fell because of a slippery or icy driveway surface a few feet from his truck. It was a benefit to Starline to have the trucks in good repair and good running order at all times to respond to Starline's needs. It was Hendrix's duty to check his vehicle and keep it in good operating condition.
The finding that Hendrix's injury occurred while he was performing services growing out of and incidental to his employment is amply supported by the evidence and must be affirmed.
By the Court. — Judgment affirmed.