Before HASTINGS, Chief Judge, and CASTLE and SWYGERT, Circuit Judges.
This diversity action was brought in the District Court by Albert J. Schaub, plaintiff-appellee, against Calder Van and Storage Company, defendant-appellant, to recover for personal injuries. The injuries are alleged to have been occasioned by defendant's negligence. The complaint alleges that plaintiff was in the employ of Whalen Transfer and Storage Company, Madison, Wisconsin, and engaged in loading furniture into defendant's moving-van when an inclined ramp leading into the van became dislodged causing the plaintiff to fall with it to the pavement beneath. The defendant's answer included as a separate and distinct special defense an allegation that plaintiff at the time of the injury was an employee of the defendant and that the Wisconsin Workmen's Compensation Act provided an exclusive remedy. The case was tried to a jury which returned a verdict for the plaintiff upon which the District Court entered the judgment from which defendant has appealed.
The defendant contends that the trial court erred in denying defendant's request that the special verdict submitted to the jury include the question of whether plaintiff at the time of the accident was an employee of defendant, and in refusing to instruct the jury on that issue. In this connection the defendant argues that from the evidence the jury could have reasonably inferred and concluded that at the time of the injury plaintiff occupied the status of an employee of the defendant under the "loaned employee" doctrine as recognized and applied under Wisconsin law.
In so far as they relate to plaintiff's employment status at the time of the incident giving rise to his claim the facts are not in dispute. On this phase of the case there is no conflict in the testimony.
In the forenoon of the day of the accident plaintiff worked for Whalen Transfer and Storage Company as a packer at a residence in Madison preparing household items for moving by van. Plaintiff was not a regular employee of Whalen but for some years had worked for it part-time, intermittently, and was paid on an hourly basis. The furniture and other household items were to be loaded and moved by the defendant, Calder Van and Storage Company. Calder had sent its driver and van from Iowa for that purpose. Whalen had been engaged to do the packing but the loading and transporting was to be done by Calder. The loading and hauling was Calder's listing. Whalen and Calder were affiliates of Allied Van Lines, Inc., and it is the practice of an Allied system affiliate when it arrives at a destination to pick up a load to secure the help to do the loading from the local Allied affiliate. Calder's van arrived at Madison with its driver only. Calder relied on Whalen to furnish loaders.
Plaintiff had finished the packing at noon. Calder's driver had stopped at Whalen's office to obtain help to do the loading. Whalen asked plaintiff: "Well, Bud, will you stay out there and help? I will send Mr. Hamachek and your driver out." Hamacheck was an employee of Whalen who reported each day and worked if work was available. Plaintiff remained at the residence where he had been packing and when the Calder driver and Hamacheck arrived he assisted in the loading of the Calder van. Defendant's driver directed the loading activities. The loading was the driver's responsibility and he issued the orders. The loaders worked under the driver. He was the "boss man". If the driver had not been satisfied with the help he could have sent them home. The plaintiff was aware of this and that defendant's driver was in control of plaintiff's activities in loading the van.
Late in the afternoon, while plaintiff was carrying a carton up the ramp which led into the van the ramp or "walk board" became dislodged and the accident occurred. The loading took 4 1/4 hours. The defendant's driver receipted for an certified to the hours plaintiff worked in loading the van. Whalen paid plaintiff for such time at his regular hourly rate of $1.60 per hour but charged Calder at the rate of $3.00 per hour per man. On occasions when plaintiff had done loading for other than Allied affiliates he had been paid by the driver in cash.
In Springfield Lumber, Feed & Fuel Company v. Industrial Commission, 10 Wis.2d 405, 102 N.W.2d 754, the Wisconsin Supreme Court had occasion to observe (p. 409, 102 N.W.2d p. 757):
"The essential tests to be applied in determining whether a loaned employee retains his employment with his original employer, or becomes the employee of the special employer, are set forth in Seaman Body Corp. v. Industrial Comm., 1931, 204 Wis. 157, 163, 235 N.W. 433, 436, as follows:
"'The vital questions in controversies of this kind are:
"'(1) Did the employee actually or impliedly consent to work for a special employer?
"'(2) Whose work was he performing at the time of the injury?
"'(3) Whose was the right to control the details of the work ...