Bodwell v. Webster

• Decision Date: 20 September 1915
• Docket Number: 18203
• Citation: 154 N.W. 229,98 Neb. 664
• Parties: BURKE E. BODWELL, APPELLANT, v. JOHN R. WEBSTER ET AL., APPELLEES
• Court: Nebraska Supreme Court

154 N.W. 229

98 Neb. 664

BURKE E. BODWELL, APPELLANT, v. JOHN R. WEBSTER ET AL., APPELLEES

No. 18203

Supreme Court of Nebraska

September 20, 1915

APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Reversed.

REVERSED.

Raymond M. Crossman and W. C. Fraser, for appellant.

Greene Breckenridge, Gurley & Woodrough, contra.

ROSE J. HAMER, J., not sitting.

OPINION

ROSE, J.

Plaintiff brought this action to recover $ 3,000 for personal injuries alleged to have been sustained by him while assisting in the repair of an elevator in the Webster-Sunderland building in Omaha. Defendants Webster and Sunderland are the owners. It was alleged in the petition that defendant Samuel K. Hanford was superintendent and foreman in and about the building and as such had charge of repairs; that plaintiff was employed to assist in replacing a tiller cable in the elevator, it being necessary for him to go down into the elevator pit to loosen one end of the cable; that the injury to plaintiff was caused by the negligence of Hanford in failing to warn him of the dangers incident to the work; that plaintiff was an inexperienced workman and not aware of the dangers; that Hanford negligently pulled the tiller cable while plaintiff was in the elevator pit and caused the elevator to descend upon him, causing injuries to his ankle, leg and back. In their answer defendants Webster and Sunderland alleged that Hanford was an independent contractor, for whose torts they were not responsible. At the close of plaintiff's testimony, they moved for a directed verdict in their favor, urging, among other grounds, that the defense mentioned was conclusively established. The motion was sustained. The trial proceeded against Hanford alone, and the jury rendered a verdict against him for $ 700. From the order dismissing the action as to Webster and Sunderland, plaintiff has appealed.

Was Hanford an independent contractor? The letter appointing him to his position says: "You are hereby appointed superintendent of the office portion of the Webster-Sunderland building. We desire you to take charge of the employees, viz., the fireman, operator of the elevator, and janitor; also, desire you to take charge of any repairs or improvements required in the office portion of the building.

"Regarding repairs and improvements: Any small expenditures that will only require a few dollars we will leave to your judgment, but anything calling for an expenditure of say $ 10 or more, we would like to have you refer to us before incurring the expense.

"It is our desire that the office part of the building shall be kept up in good shape, that the halls shall be kept neat and clean, that no disorder shall be permitted, that the employees shall attend faithfully to their duties, and in general that the building shall be kept in as attractive condition as possible and entirely satisfactory to the tenants. * * *

"Regarding your compensation: I told you that we were paying 5 per cent. on the cost of all this matter. I find that I am in error, that George & Co. have not been charging us 5 per cent. on the salaries of the employees or for sundry items for janitors' supplies. They just charged us 5 per cent. on the repairs. I, therefore, suggest, as a fair compensation to you, that we pay you as follows: For the work you have been heretofore doing, looking after the elevator, electric lights, etc., $ 10 per month. Supervision of employees and repairs and improvements, 5 per cent. commission."

Hanford testified that he was an electrical contractor, having his office in the Webster-Sunderland building. After the receipt of the foregoing letter, November 4, 1910, he entered upon the discharge of his duties. He superintended the work of the foreman of the building, directing the elevator operator, the janitor, and the engineer. Such employees were hired and discharged by him. In some instances he paid them twice a month by his personal check, afterward sending his bill to Webster and Sunderland, with 5 per cent. added for commission; and at other times he sent them statements for salaries and repairs, and afterward paid the claimants with funds received from his employers. According to his own testimony, he did not consider that they were working for him, but were servants of Webster and Sunderland, though he had charge of them and directed their work. If their services were not to be compensated by the owners of the building, he would not have considered it his obligation to pay them. Work of repairing the elevator was within the scope of Hanford's business as an electrical contractor. He could do the work himself or employ another electrician. In either case he would add 5 per cent. to the regular cost of the work for his commission. Plaintiff was an apprentice, and had been employed by Hanford in his electrical business for about nine months before the accident. He had also repaired the building in minor respects. He had been told by Hanford to look after the elevator and repair it, if necessary, when Hanford was not there. For work of this kind time slips were made out to the owners. Record of this work was kept separately from that done for Hanford. The cost of installing the cable on the day of plaintiff's injury was $ 12.50, which included Hanford's commission on the materials and labor used. This work was done without consultation with the owners. Hanford also testified that the owners had not directed the employment or discharge of servants.

An "independent contractor" has been defined to be "One who,...