Johnston v. Smith
| Decision Date | 29 July 1932 |
| Docket Number | 28245 |
| Citation | 243 N.W. 894,123 Neb. 716 |
| Parties | FRANK JOHNSTON, APPELLEE, v. BEN H. SMITH, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIAM G HASTINGS, JUDGE. Reversed and dismissed.
Decree reversed and cause dismissed.
Syllabus by the Court.
One who undertakes to obtain contracts for advertising for another for no other remuneration than a percentage of the gross amount of the contracts, to pay all of his own traveling expenses, to choose his hours of labor, and to select the prospective customers upon whom he should call in his territory, without any right of such other to control the manner or method of his work, is not an employee, within the meaning of the term " employee" as used in the Workmen's Compensation Act, even though assigned to a specified territory, and furnished a list of prospective customers and supplies for writing the contracts.
Appeal from District Court, Douglas County; Hastings, Judge.
Proceedings under the Workmen's Compensation Act by Frank Johnston against Ben H. Smith, doing business as and in the name of the Western Advertisers' Association. From a decree of the district court allowing compensation on appeal from an award by the compensation commissioner, the defendant appeals.
Reversed and the cause dismissed.
Brome Thomas & McGuire and G. H. Seig, for appellant.
O. M. Olsen, contra.
Heard before GOSS, C. J., ROSE, DEAN, EBERLY and DAY, JJ., and DICKSON and TEWELL, District Judges.
This action was brought under the workmen's compensation act. The plaintiff, Frank Johnston, recovered an award before the compensation commissioner, and the defendant filed his petition on appeal in the district court for Douglas county, where a decree was entered allowing compensation. The defendant appeals to this court.
One question presented is that of whether or not the plaintiff was an employee of the defendant at the time of the injury. At the trial in the district court witnesses for the plaintiff only were examined, the defendant offering no witnesses. The evidence is without substantial conflict.
The defendant conducts a business at Omaha, Nebraska, under the name of Western Advertising Association. In February, 1931, the plaintiff and the defendant entered into an oral agreement, whereby the plaintiff was to sell newspaper advertising to banks and building and loan associations for the defendant upon a strictly commission basis of 25 per cent. of the gross amount of his sales. The plaintiff paid his own expenses and furnished his own automobile. During a short period of time after the agreement the plaintiff called upon prospective customers at Valley, Council Bluffs, and places near Omaha, for the reason, he says, that he then had no car. After purchasing an automobile the plaintiff worked in towns in Iowa, came back to Omaha for the week-end, and then went to southern Minnesota, working in two or three towns in Iowa on his way to Minnesota. The plaintiff testifies that the defendant directed him to call upon certain prospective customers that he did call upon while working near Omaha, and furnished the plaintiff with a list of prospective customers in southern Minnesota. If a sale was made by the plaintiff, he, by the terms of the agreement, collected a portion of the sale price and remitted all collected to the defendant, and the defendant looked after collection of the balance. The plaintiff was required to report all sales to defendant. At the various towns visited the plaintiff says he called upon those customers from whom he thought he might secure an order. Two letters from the defendant to plaintiff written while the plaintiff was engaged as such salesman are in evidence and are what might be called letters of encouragement. These...
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