In re Footville Condensed Milk Co.

GEIGER, District Judge (after stating the facts as above)'. Section 64b, subd. 4, of the Bankruptcy Act grants a priority of payment to “Wages due to workmen, clerks, or servants,” etc., of a bankrupt. As above indicated, the only question is whether these claimants were workmen or servants of the bankrupts, entitled to the ■preferential treatment accorded by the statute. Obviously, elementary definitions of these terms cannot be very helpful. That a laborer is one who labors, a workman one who works, or, as Bouvier puts it, “one who is employed in some business for another,” are truisms just as applicable to conceded instances of “independent contractor” as to conceded relations of master and servant. So, too, the fact that each claimant, as a part of his engagement, obligated himself to live up to certain specifications respecting the manner of performance does not distinguish the relation as one of master and servant from one of ordinary independent contract containing like specifications. Nor can the method of payment be the criterion, and therefore the attendant guaranty of a minimum per day in the one, or the monthly stipend in the other, of the two cases, is not determinative of the character of the relation. If ’ the fact that these claimants in discharging their engagement performed such manual or physical labor as is usually a proper su'bject of hiring a workman or servant were controlling, then obviously they are workmen' or servants. But that rather begs the real question, which is, What was the relation'wherein they performed their work or rendered their service? Remington on Bankruptcy (2d Ed.) § 2168 et seq. Now, in answering the question, it must, of course, be conceded that in making the arrangement for the hauling of milk it was essential to provide for the driving of the teams and the handling of milk cans, as well as for the actual hauling from the farmer to the factory by a team-drawn wagon. Neither could be dispensed with. But the result to be accomplished was the transportation by team and wagon, and that was the dominant subject of the relation created 'by the contract. And the fact that this involved necessarily and indispensably the attendant personal service of the owner of the team in driving the team, loading and unloading milk cans, does not bring into the situation the element which, as will be seen, affords the ultimate general test. That element is the subordination and personal subservience of a workman or servant to the one who engages him. That element is, in my judgment, lacking in the cases before us, just as it is in the everyday instances of expressmen, draymen, liverymen, cabmen, passenger, or freight transfer agencies. These common situations are never deemed to create the relation of master and servant, though frequently the service rendered and the method of compensation is identical with that appearing in the cases before us. Another pertinent feature of the relation of claimants to these factories is found in the entire freedom to sublet, assign, or in any manner to delegate the performance of the obligation to another or to others. So, too, if the quantity of milk deliverable on any route shall prove to exceed the capacity of 'a single team, it would be permissible for any hauler to increase his equipment to meet the re [139] quirements, to hire servants for that purpose, or in fact to do anything he pleased to meet the requirements of a route, if he cared to assume additional burdens in order to derive greater benefits. Of course, it does not appear that the latter ever happened, but the right to assign or delegate the performance of the obligation assumed seems entirely clear, and the personal subservience and subordination usually found in the relation of master and servant or workmen excludes that idea. Counsel suggests that if one of claimants were injured while discharging his duties as a hauler he would probably be entitled to an award under the Workmen’s Compensation Act. This, of course, involves the whole question respecting the relation existing. But if resort to analogies is to be had, we might also consider whether the negligence of a hauler—for example, in failing to hitch his team— could be imputed to the corporation operating the condensery, so as to render it liable to third persons injured by reason thereof. It is my judgment that upon application of fair tests of independence or subservience the claims fall within the former class, and that adjudicated cases cited by the trustee support this view. Remington on Bankruptcy, supra; Re Zotti (D. C.) 23 Am. Bankr. Rep. 607, 178 Fed. 304; Re Crown Point Brush Co. (D. C.) 200 Fed. 882; Re Gurewitz, 121 Fed. 982, 58 C. C. A. 320; Re Mayer (D. C.) 101 Fed. 227; Spruks v. Lackawanna Dairy Co. (D. C.) 189 Fed. 287; Re Blakman Bros., 6 Chi. Reg. N. 18; Re Rose, 1 Am. Bankr. Rep. 68; Campfield v. Lang (C. C.) 25 Fed. 128; Farmer v. St. Croix Power Co., 117 Wis. 76, 93 N. W. 830, 98 Am. St. Rep. 914. The conclusion is that the claims are not entitled to priority. An order may be entered, reversing the ruling of the referee accordingly.