#### Machae, Appellant, vs. Fellenz Coal & Dock Company, Respondent.

*January 18*

February *12, 1924.*

*Master and servant: Stevedore contractor: Injury to employee: Liability of dock company: Workmen's compensation.*

1. A stevedore contractor, who in performing work for a dock company employed his own men and discharged them at will and was paid the contract price- in a lump sum and in turn paid his own men, is an independent contractor, to whose employee the dock company was not liable for injuries, p. 46.

2. Although an injured employee of an independent contractor, if under the workmen’s compensation act, may recover compensation from the contractor’s employer if damages cannot be collected of the contractor, a stevedore is not subject to such act. p. 46.

Appeal from a judgment of the circuit court for Milwaukee county: E. W. Crosby, Judge.

*Affirmed.*

Action to recover damages for personal injuries.' Plaintiff was a stevedore. At the time of the accident he was working in the hold of a vessel moored to defendant’s coal dock, assisting in unloading a cargo of coal. The coal was removed from the hold of the vessel by means of a hoist arid bucket. Through the negligence of the hoist operator the bucket was prematurely dumped, the contents thereof falling back into the hold of the vessel inflicting serious injury upon the plaintiff.

The case was tried before a jury. A special verdict was returned by which it was found that plaintiff was an employee of defendant; that the man who operated the hoist was guilty of a want of ordinary care; and that such negligence was a proximate cause of plaintiff’s injuries. Upon this verdict the court rendered judgment in favor 'of the defendant, from which judgment the plaintiff appealed.

For the appellant there was a brief by *Cannon, Bancroft & Waldron*of Milwaukee, and oral argument by *L. H. Bancroft.*

*45For the respondent there was a brief by *Lines, Spooner & Quarles,*attorneys, and *Quarles, Spence & Quarles,*of counsel, and oral argument by *CJmrles B. Quarles*and *Arthur B. Doe,*all of Milwaukee.

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 testi*46fied 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.