Knuffke v. Bartholomew
| Decision Date | 14 October 1921 |
| Docket Number | 22171 |
| Parties | MICHAEL A. KNUFFKE, APPELLANT, v. EDWARD W. BARTHOLOMEW, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Cheyenne county: WILLIAM H WESTOVER, JUDGE. Affirmed.
AFFIRMED.
Gurley Fitch, West & Hickman, for appellant.
McIntosh & Martin, contra.
Heard before MORRISSEY, C.J., ALDRICH, DAY, DEAN, FLANSBURG, LETTON and ROSE, JJ.
This is a proceeding under the workmen's compensation law. While defendant was engaged in plastering a panel on the outside of the Reinmuth Implement Building in Sidney, he fell from a scaffold July 9, 1920. To procure an award for resulting injuries he filed with the compensation commissioner a claim against plaintiff, the contractor by whom the building was being constructed. That officer found that defendant, when injured, was an employee of plaintiff and was entitled to $ 15 a week for a period not yet determinable. From this award plaintiff appealed to the district court and there pleaded that defendant, when injured, was an independent contractor as distinguished from an employee, and therefore not entitled to compensation for his injuries. Plaintiff pleaded further that defendant's disability was not total or permanent and prayed for a dismissal of the proceeding. The trial court found that defendant was an employee of plaintiff and was entitled to $ 15 a week for a total disability from the date of the accident, July 9, 1920, until the date of the decree, May 17, 1921, and thereafter to $ 12 a week for a permanent partial loss for 183 weeks, both periods being 225 weeks. Plaintiff has appealed.
It is first argued that defendant was an independent contractor and not an employee. The question is one of fact. Plaintiff offered no evidence and the issues were determined alone on the proofs adduced by defendant. It follows that all the issuable facts which the evidence tends to establish may be considered proved.
On the issue as to whether a workman is an employee as distinguished from an independent contractor, his relation to his employer should be determined from all the facts, rather than from any particular feature of the employment or service. Barrett v. Selden-Breck Construction Co., 103 Neb. 850, 174 N.W. 866.
There is evidence tending to prove the following facts: Defendant entered into an oral contract with plaintiff to plaster the interior of the building for 17 cents a yard and the contract was fully performed. During the negotiations the plastering of an exterior panel for a sign was mentioned, but defendant said it was doubtful if he could do it, owing to another engagement. Later defendant orally promised, for $ 1.25 an hour, to plaster the panel, plaintiff to construct the scaffold and to furnish a helper. Plaintiff agreed to these terms and constructed the scaffold. Defendant commenced work on the panel and was attended by his former helper, who used defendant's mortar box. Plaintiff told how he wanted the panel plastered, but was not present when the work was done. His foreman was there, however, and defendant would have been under him, had changes or information been wanted. On account of a defect in the scaffold, defendant, while using it in plastering the panel, fell head foremost to the pavement below. In the settlement for work and materials he received 17 cents a yard for the interior plastering and paid his helper 65 cents an hour. He received $ 1.25 an hour for his work on the exterior panel and collected 65...
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