Lead Opinion
*796 On Rehearing.
Both parties have filed motions for rehearing, which, after due consideration, we have decided should be overruled.
In the original opinion we said, among other things, that, since a finding upon the question of fact as to whether Boggs was an independent contractor would determine as a matter of law the question of whether he was an employee under the Workmen's Compensation Law, “there was, therefore, no real necessity to submit the issue of whether Boggs was an employee.” Upon appellee’s suggestion that this statement is unfortunate and should be withdrawn, we have concluded to withdraw it. The evidence in a case may establish as a matter of law that one in possession of another’s property and performing work or services for such other is an employee (and therefore, of course, not an independent contractor), though the evidence be wholly silent as to whether he is or is not an independent contractor. This results because of certain presumptions arising upon particular facts when undisputed. But, when there is some evidence raising a question of fact as to whether one is an independent contractor, it at the same time, if not conclusive, raises a question of fact as to whether he is an employee. Since under the decisions of which Colorado & So. Ry. Co. v. Rowe, supra, is typical, these questions of fact are each independent issues required to be submitted to the jury, it would be the duty of the court to submit both, and error in the failure to submit one over proper objection would not be rendered harmless by the verdict rendered upon the other.
Since writing the original opinion, we have had occasion to consider more thoroughly than we were called upon to do in the instant case the question of submitting an issue of average weekly wages, and the giving of a proper definition of that term. The case referred to is Traders’
&
General Ins. Co. v. Mrs. Grace Williams et al.,
In view; of the particular objection made, we were not called upon in this ease to pass upon the correctness of the definition given of average weekly wages. The opinion in the Williams Case, supra, will disclose that according to our view the definition given in this case was" not correct to the extent that it included first subdivision 3 of R. S. 1925, art. 8309, § 1.
In accordance with the conclusion above stated, both motions for rehearing are overruled.
I did not fully concur in the opinion in the Williams Case above referred to, on the question of the proper method of submitting to a jury the issue of “average weekly wages,” and, while I concur in overruling the motion for rehearing in this case, I do not concur in that portion of the opinion on rehearing referred to and approving what was said on that question in the Williams Case.
Addendum
I did not fully concur in the opinion in the Williams Case above referred to, on the question of the proper method of submitting to a jury the issue of "average weekly wages," and, while I concur in overruling the motion for rehearing in this case, I do not concur in that portion of the opinion on rehearing referred to and approving what was said on that question in the Williams Case.