112 Neb. 797 | Neb. | 1924
This is a proceeding under the workmen’s compensation law. The name of plaintiff, an injured employee seeking compensation, is Peter W. Sherlock, Junior. There are two defendants. The name of one of them is Peter W. Sherlock, Senior, the father of the plaintiff. The other defendant is the Richardson Drug Company, a corporation engaged in the wholesale drug business. In conducting that enterprise it owns, occupies and uses a five-story brick building at Ninth and Jackson streets, Omaha. Defendant Sherlock, as an independent contractor. .June 29.- 1923, agreed with the corporation to paint exterior parts of its building for $135 and to hold it harmless in the event of an accident to himself or to any of his employees. In contemplation of the painting the corporation in letting the con
There is no conflict in the evidence. On the facts outlined, is plaintiff entitled to compensation from the corporation? The solution is not free from difficulties and in some respects judicial opinion is not harmonious. The decision depends on the meaning of the workmen’s compensation law when applied to the undisputed facts.
While defendant Sherlock was an independent contractor and the corporation did not directly employ plaintiff, the statute seems to create a liability for compensation for a failure to procure insurance for the protection of workmen. Among the provisions of the workmen’s compensation act are the following:
“Any person, firm or corporation creating or carrying into operation any scheme, artifice or device to enable him, them or it to execute work without being responsible to the workmen for the provisions of this article, shall be included in the term ‘employer’ and with the immediate employer shall be jointly and severally liable to pay the compensation
The terms, “any scheme, artifice or device,” as they are thus used, do not necessarily imply active fraud or evil design. Any one resorting to such means under the circumstances described in the legislation on this subject may be included within the term “employer.” Defendant Sherlock and the corporation meant to release the latter from liability for compensation of a painter, if injured while at work on the exterior of the building. The independent contract imposed upon defendant Sherlock the following obligation :
“I agree to hold the Richardson Drug Co. harmless in case of any accident to myself or employees.”
This may fairly be considered a “device” within the meaning of the workmen’s compensation law, if the corporation disregarded a statutory duty to require its independent contractor to procure compensation insurance.
In its regular trade or business as a wholesale druggist the corporation is an employer and as such is amenable to the workmen’s compensation law. Comp. St. 1922, secs. 3029, 3037, 3038. The act, however, in defining the word “employee” for the purposes of the legislation, declares:
“It shall not be construed to include any person whose employment is casual, and which is not in the usual course of the trade, business, profession or occupation of his employer.” Comp. St. 1922, sec. 3038.
The disjunctive “or” formerly separated the two condi
To escape liability under the statutory definition of “employee,” therefore, it is now incumbent on the corporation to show both conditions — casual employment and not in the usual course of trade or business. Nor is it enough to prove the letting of the independent contract, if plaintiff performed his services as workman “in the usual course of the trade, business, profession or occupation” of the corporation. In that contingency the duty to require defendant Sherlock to procure compensation insurance, still remained. In this connection the corporation asserts that the requirement for insurance is inapplicable, because, as it is argued, the outside painting was not done in the usual course of the wholesale drug business. The contrary seems to be the better view, though the question is debatable. The building is property of the corporation and is used for corporate purposes. Capital of the corporation is invested in the building and the expense of repairing it is payable from the corporate funds. The building is used for offices, storage and other general purposes of the wholesale drug business. It is property used legitimately in conducting the enterprise in which the corporation is engaged. The workmen’s compensation law does not separate it from the stock of drugs for the purpose of determining what is done in the usual course of trade. Plaintiff, when injured while painting, had he been employed directly by the corporation, would have been a person whose employment was “in the usual course of the trade, business, profession or occupation of his employer.” Casual employment or employment by, an independent contractor, outside of such “trade, business, profession or occupation,” would present a different question. Under a liberal construction of the
Affirmed.