Machae v. Fellenz Coal & Dock Co.

197 N.W. 198, 183 Wis. 44, 1924 Wisc. LEXIS 124

• Court: Wisconsin Supreme Court
• Decided: February 12, 1924
• Status: Published

Opinion

Owen, J.

While the trial judg'e was of opinion that there was sufficient ‘ evidence to sustain the finding of the jury that plaintiff was an employee of the defendant, he declined to render judgment in favor of the plaintiff because, if so, both employer and employee were under the workmen’s compensation act, and defendant’s liability was for compensation, and not damages in a common-law action; that in order to avoid this consequence it must appear that the act of negligence constituted a maritime tort; that.in such case the man operating the hoist and plaintiff were fellow-servants; 'that the plaintiff’s injury was caused solely by the negligence of the fellow-servant, and in an action for a maritime tort the fellow-servant defense applies, and the plaintiff could not recover under such a view of •the case. Without casting doubt upon the reasoning of the trial judge, we prefer to dispose of the case upon a different theory. While the jury found that the plaintiff was an employee of the defendant, and the trig! judge expressed the opinion that this finding was sufficiently supported by the evidence, we are compelled to a different view. '

.It appears that one P. J. Hannan, a stevedore contractor, was employed by the defendant to unload the coal from the vessel. He was paid so much a ton for unloading the coal. He employed his own men and discharged them at will. The defendant had no knowledge of the men engaged in unloading the coal and their names did not appear upon the company’s payroll. When the coal was unloaded the defendant gave Hannan a check for the amount due, computed by the number of tons at the agreed price per ton. This check Hannan deposited in-the bank to his own account and paid the men with his own checks. While Plannan testified that he was acting as the company’s agent in employing these men, every fact and circumstance in the case contradicts such a conclusion. Fie was nothing more nor less than the well known stevedore contractor. It seems unnecessary Ox us to set out the evidence in detail. Our conclusion is based upon the main facts that Hannan was employed by t! < defendant to unload the coal at so much per ton; that he did it in his own way; that the defendant reserved no right to control or direct his methods; that he hired and discharged his own men; that the defendant paid him the contract price in a lump sum and that he in turn paid his own men. This constituted Hannan an independent contractor. Madix v. Hochgreve B. Co. 154 Wis. 448, 143 N. W. 189; Weyauwega v. Industrial Comm. 180 Wis. 168, 192 N. W. 452. Neither the plaintiff nor the hoist operator was an employee of the defendant. They were both employed bjx Flannan. There is no theory upon which the defendant can be held responsible for plaintiff’s injuries. It is true that if the plaintiff were under the workmen’s compensation act the defendant would be liable for compensation if the same could not be collected of Hannan. But it is well settled that a stevedore is not subject to the workmen’s compensation act. Neff v. Industrial Comm. 166 Wis. 126, 164 N. W. 845; Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 Sup. Ct. 438. It follows that the judgment must be affirmed.

By the Court. — So ordered.