129 Neb. 306 | Neb. | 1935
This is a suit under the workmen’s compensation law. The plaintiff, Leonard A. Reeder, recovered an award before the compensation commissioner from which an appeal was taken to the district court. From á decree in favor of the plaintiff, the defendant brings the case to this court on appeal.
The only question involved is whether the plaintiff was an employee of the defendant or an independent contractor.
“The true test of a ‘contractor’ would seem to be, that lie renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished. * * * In actual affairs an independent contractor generally pursues the business of contracting, enters into a contract with his employer to do a specified piece of work for a specific price, makes his own subcontracts, employs, controls, pays and discharges his own
In Potter v. Scotts Bluff County, 112 Neb. 318, this court said: “In the instant case it will be observed that the contract did not require the work to be performed by the contractors, but they might employ others to perform the work. No particular time was stipulated within which the work should be performed. The contractors or their employees could work to suit their own convenience; keep their own time; determine during what hours they should perform the work; determine what days they should or should not work; determine whether the gravel should be hauled by teams or motor trucks; determine the size of the loads and have control over all of the details of performing the labor. They were at liberty to hire as many men as they saw fit. They might have completed the work within a week or might have taken 60 to 90 days in which to do it. They were at liberty to determine the wages they would pay to the hired men, the price they would pay for teams, and were to furnish their own tools and equipment. On the other hand, while the contract specified that the-work should be done subject to the instruction of the county highway commissioner, it is apparent that his only concern, or the county’s concern, was in seeing that the proper-kind and amount of gravel was evenly distributed over the-highway. The county had no control over the men; could not hire or discharge them; could not determine the number who should be employed; could not determine how-many teams should be operated; could not determine the-hours of labor, the size of loads, or any of the other de
The rule that the relationship should be determined from all the evidence was well expressed in Showers v. Lund, 123 Neb. 56, as follows: “There is no hard and fast rule by which to decide whether one is-an employee or an independent contractor, but that relation must be determined from all the facts in each particular case.”
The plaintiff contends that the defendant, in instructing the plaintiff where to get the coal, where to put it and how to approach the coalbins, exercised such control as would make plaintiff an employee. In the case of Petrow & Giannou v. Shewan, 108 Neb. 466, this court said: “The giving of such instructions by the defendants, however, would not be inconsistent with the relationship of the plaintiff toward them as an independent contractor, since, were he an independent contractor, the defendants would have had the right to instruct him as to what had to be done, so as to secure the fulfilment of their contract. This could be and was done in this case, without in any way interfering with the plaintiff’s right to perform the contract in whatsoever manner or by what method he chose.” The evidence in this case clearly sustains the claim of the defendant that the instructions given were those necessary only to secure the fulfilment of the contract.
In Norton v. Day Coal Co., 192 Ia. 160, the applicant owned a team and wagon with which he carried on a hauling business; the defendant, a coal company, engaged the applicant on such occasions as he applied for work and the company had coal to haul; the applicant was paid by the load, could discontinue work whenever he liked, could haul
The plaintiff relies upon Showers v. Lund, supra, and Cole v. Minnick, 123 Neb. 871. In Showers v. Lund, supra, it is. clear that the employer had full control over the detail of the work and that plaintiff was devoting his entire time to the business of the employer. The fact that plaintiff in that case was paid by the number of yards of gravel that he hauled becomes less important when it appears that the details of the method of accomplishing the purpose of the employment were under the control of the employer. It is also apparent that the plaintiff in that case did not agree to perform a specific piece of work or to complete a specific job. In Cole v. Minnick, supra, the court in the
In our opinion, no other finding than that the plaintiff was an independent contractor can be sustained. Where the evidence clearly shows, without question, that the-claimant under the workmen’s'compensation law is in fact an independent contractor, and not an employee, a contrary finding by the trial court cannot be sustained.
The judgment of the district court is reversed and the cause dismissed.
Reversed and dismissed.