Claus v. De Vere

• Decision Date: 13 March 1931
• Docket Number: No. 27737.,27737.
• Parties: CLAUS v. DE VERE.
• Court: Nebraska Supreme Court

120 Neb. 812

235 N.W. 450

CLAUS

v.DE VERE.

No. 27737.

Supreme Court of Nebraska.

March 13, 1931.

Syllabus by the Court.

One engaged in the buying and shipping of poultry in carload lots to distant markets is engaged in a “business,” within the meaning of that term, as used in the workmen's compensation law.

Syllabus by the Court.

Where a person is employed as a caretaker of a carload of poultry, being shipped by the owner to a market in another state, and where the owner contracts with the railway company for the car, and retains the right to have the car stopped at other points for the purpose of receiving poultry, and has the right to control the destination of the car, its routing, and the right to divert it to another market, such caretaker is, within the meaning of the workmen's compensation law, an employee, and not an independent contractor.

Syllabus by the Court.

In the absence of federal legislation, the Nebraska workmen's compensation law is applicable to a caretaker of live poultry which is being transported from one to another state, and is not violative of subdivision3, § 8, art. 1, of the federal Constitution.

Syllabus by the Court.

Under the workmen's compensation law, an injured employee cannot recover for services as a nurse rendered him by his wife in their home, while he is incapacitated because of an injury received in the course of his employment.

Syllabus by the Court.

Where a reasonable controversy exists between an employer and an employee, as to the former's liability under the workmen's compensation act, the employer is not liable for the penalty for waiting time during the time the cause is pending in the courts for final determination.

Appeal from District Court, Lancaster County; Shepherd, Judge.

Action under the Workmen's Compensation law by William Claus, employer, against Paul De Vere, employee, to vacate an award of compensation by the Compensation Commissioner, in favor of the employee. From the judgment, both parties appeal.

Affirmed.

Flansburg & Lee and John O. Sheldahl, all of Lincoln, for plaintiff.

Sanden, Anderson, Laughlin & Gradwohl, of Lincoln, for defendant.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, and PAINE, JJ.

GOOD, J.

This action arises under the workmen's compensation law. Plaintiff was the employer; defendant the employee. In his petition plaintiff sought the vacation of an award of compensation made to defendant by the compensation commissioner. As grounds for the vacation plaintiff alleged that defendant did not sustain to him the relation of an employee, but was an independent contractor; that, at the time defendant was injured, he was employed in interstate commerce, and that the workmen's compensation law, as applied to those engaged in interstate commerce, is in violation of subdivision 3, § 8, art. 1, of the federal Constitution, which gives to congress the power to regulate commerce among the several states. The trial court found for defendant and awarded compensation. Plaintiff has appealed, and defendant has filed a cross-appeal for refusal of the trial court to allow him penalty for waiting time and to allow for nursing services furnished defendant by his wife while he was suffering from his injuries.

Plaintiff is engaged in the buying and shipping of live poultry and maintains two or more places of business in the state of Nebraska. The poultry is shipped in carload lots to various markets. It is the custom to have a caretaker, who has charge of the poultry, feeding, watering and caring for it, accompany each carload shipment. Defendant has at different times been employed by various firms engaged in the poultry business as a caretaker accompanying shipments of live poultry. He solicited plaintiff for work of this character. Plaintiff had no shipments at that time, but informed defendant that he probably would have a little later. A short time thereafter he called defendant by telephone and requested that he be ready to go with him the next morning. On the following morning defendant accompanied the plaintiff and another employee in the plaintiff's automobile from Lincoln, Nebraska, to Belle Fourche, South Dakota. Plaintiff informed defendant that he would have a car for him, but that he did not know at that time from what particular place the car would start. On the way to Belle Fourche the parties stopped at Alliance and other points, where plaintiff visited the poultry dealers from whom he purchased, and introduced defendant as one of his new men with whom they were to deal. At Belle Fourche the other employee was left to take charge of a car, and plaintiff and defendant returned to Crawford, Nebraska, at which place plaintiff had ordered a car for the shipment of live poultry to New York. Defendant was placed in charge of the car, and he and plaintiff remained there that day, loading about 6,000 pounds of poultry for the shipment. Plaintiff then directed the car to proceed to Alliance, where defendant would receive additional poultry, with instructions that, if sufficient poultry to make a carload should not be obtained there, the car should be stopped at either Grand Island or York, Nebraska, in order to pick up sufficient poultry to make a carload. Plaintiff was to direct at which place they should stop. Defendant was injured in the course of his employment at Alliance and was unable to perform work thereafter. Another person was, by plaintiff,put in charge of the car, and it proceeded to its destination.

It appears that defendant furnished certain articles, such as a rake, hoe and scoop, and his own cooking utensils and bedding. It appears also that curtains are used to place on the sides of the car when necessary to protect the live poultry from rain and snow, and that these curtains were furnished by plaintiff; that plaintiff purchased and paid for the feed for the poultry en route to destination; that he routed the car from its initial point to destination, and had the right to divert it from one point, to another, and to control the time when the poultry should be sold, and he made the arrangements with the parties to whom the poultry should be sold.

Plaintiff contends that defendant was to receive for the entire round trip the sum of $70; that plaintiff was concerned only with results; that defendant was, therefore, an independent contractor, and not an employee. Defendant testified that no compensation for his services was agreed upon, but that the customary and reasonable wage paid was $8 a day from the time of starting until the caretaker had returned to Lincoln. Plaintiff testified that it was his uniform custom, in all of his shipments, to pay $70 for the round trip. The evidence discloses that sometimes a trip to New York could be made, and the caretaker return, in five days; that the average time from Lincoln was seven days; that from the western part of the state the usual time consumed was eight days.

We do not regard the matter of payment, whether it was $70 for the round trip or $8 a day, as decisive of the question, but it would appear that defendant's contention is the more reasonable and probable. If, for any reason, the price for the poultry was not satisfactory at the point of destination, plaintiff had the right to hold over the shipment for a later market, or to divert it to another market. The caretaker, in that event, would necessarily be...