Employers Mutual Liability Insurance v. Department of Industry, Labor & Human Relations

190 N.W.2d 907, 52 Wis. 2d 515, 1971 Wisc. LEXIS 1016

• Court: Wisconsin Supreme Court
• Decided: November 2, 1971
• Docket: No. 148
• Status: Published

Opinion

Beilfuss, J.

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 1989, 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.¹

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 Star-line 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 oh 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.

1 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.