123 Neb. 716 | Neb. | 1932
This action was brought under the workmen’s compensation act. The plaintiff, Frank Johnston, recovered an award before the compensation commissioner, and the defendant filed his petition on appeal in the district court for Douglas county, where a decree was entered allowing compensation. The defendant appeals to this court.
. One question presented is that of whether or not the plaintiff was an employee of the defendant at the time of the injury. At the trial in the district court witnesses for the plaintiff only were examined, the defendant offering no witnesses. The evidence is without substantial conflict.
The defendant conducts a business at Omaha, Nebraska, under the name of Western Advertising Association. In
On April 23, 1931, while driving his car from Sleepy Eye, Minnesota, to Sanborn, Minnesota, to call upon banks at the latter place, the plaintiff was injured on account of his car striking some loose gravel and going into a ditch.
Under cases heretofore decided there seems to be no single test as to what kind of an agreement will constitute one an employee within the workmen’s compensation act. The measure or method of payment, who it is that selects the place and hours of labor, the particular plan of the work and liability for wrongful failure to properly perform it are often significant, though not necessarily controlling. Generally, the questions of whether or not the alleged employee, by the terms of the agreement, is understood to retain the right to direct the manner and method Of the work as it proceeds, and what work shall be done and what not done, are important factors in determining whether or not the one doing the work is an employee. The plaintiff having undertaken to obtain contracts for advertising for no other remuneration than a percentage of the gross amount of the contracts, to pay all of his own traveling expenses, to choose his hours of labor, and to select the prospective customers upon whom he should call in his territory, without apparent right of the defendant to control his work, was not an employee within the mean
It is not necessary to decide the issues raised relative to the amount of compensation allowed for temporary total disability, relative to whether any permanent partial disability should have been allowed, and relative to whether the amount allowed for medical and hospital expenses was more than was justified by the evidence, since the plaintiff is not entitled to recover any compensation.
For reasons above stated, the decree of the trial court is reversed and this cause dismissed. All costs taxed to the plaintiff.
Reversed and dismissed.