Lowe v. Chicago Lumber Co. of Omaha

• Decision Date: 10 February 1939
• Docket Number: 30595.
• Citation: 283 N.W. 841,135 Neb. 735
• Parties: LOWE v. CHICAGO LUMBER CO. OF OMAHA.
• Court: Nebraska Supreme Court

283 N.W. 841

135 Neb. 735

LOWE v. CHICAGO LUMBER CO. OF OMAHA.

No. 30595.

Supreme Court of Nebraska.

February 10, 1939

Syllabus by the Court.

1. " There is no hard and fast rule by which to decide whether one is an employee or an independent contractor, but that relation must be determined from all the facts in each particular case." Showers v. Lund, 123 Neb. 56 242 N.W. 258.

2. " An independent contractor is one who renders the service in the course of an independent occupation, representing the will of his employer only as to the result of the work, and not as to the means by which it is accomplished." Reeder v. Kimball Laundry, 129 Neb. 306, 261 N.W. 562.

3. " An independent contractor is generally distinguished from an employee as being a workman who contracts to do a particular piece of work according to his own method, and is not subject to the control of his employer, except as to the results of the work." Petrow & Giannou v Shewan, 108 Neb. 466, 187 N.W. 940.

4. A person who contracts to supply all the labor to build, and agrees to supervise the construction of, a barn according to a plan furnished, and to do anything necessary in line with regular construction, not mentioned in the contract, to insure a complete job, and receives a definite amount for the work done, furnishes his own tools, employs, controls and discharges the workmen and fixes their hours and wages held to be an independent contractor and not an employee.

Appeal from District Court, Platte County; Lightner, Judge.

Proceeding under the Workmen's Compensation Act by Beulah Lowe, administratrix of the estate of Charles E. Lowe, deceased, opposed by the Chicago Lumber Company of Omaha. From a judgment of the district court granting an award on appeal from the denial of an award by the compensation court, the Chicago Lumber Company of Omaha appeals.

Judgment reversed and cause dismissed.

Frederick M. Deutsch, of Norfolk, for appellant.

Carroll Thompson, of Fullerton, and Wagner, Wagner & Albert, of Columbus, for appellee.

Heard before SIMMONS, C. J., and ROSE, CARTER, MESSMORE, and JOHNSEN, JJ.

MESSMORE, Justice.

The administratrix of the estate of Charles E. Lowe brought an action to recover compensation, arising out of the death of Charles E. Lowe. The compensation court denied the claim, and on appeal to the district court for Platte county, an award was granted, from which the defendant appeals.

Plaintiff's petition is usual in form. The answer is a general denial and a specific denial that the deceased was in defendant's employ at the time of receiving the injury resulting in his death. The reply to the answer pleaded estoppel, and reference will be made thereto in the opinion.

The record discloses a contract made by the Penn Mutual Life Insurance Company with the defendant Chicago Lum ber Company of Omaha, a corporation, wherein the latter agreed to build a barn on the Hill farm in Platte county, Nebraska, which was owned by said insurance company, for the sum of $1,325, furnish all necessary material and carry compensation insurance " to cover all workmen engaged on such work." On or about June 2, 1937, the defendant entered into a contract with Charles E. Lowe, wherein the said Lowe agreed to supply all the labor to build, and agreed to supervise construction of, a barn on the Hill farm in Platte county, according to a plan furnished by defendant. The size of the barn and the general specifications are covered at some length in the contract, and following the general specifications appears this language: " The intention of this contract is that the barn shall be built by party of the first part, substantially and according to plan as near as feasible to make a satisfactory and good job. Anything necessary in line with regular construction not mentioned herein shall be accomplished by the party of the first part to insure a complete job." The contract also provided that Charles E. Lowe was to receive the sum of $325 and contained the following language: " Party of the second part (defendant) further agrees to carry full workmen's compensation Insurance and Public Liability Insurance, without cost to C. E. Lowe." The contract further provided that the work was to be completed in 60 days from May 24, 1937; the old barn on the farm was to be torn down, and all sound lumber therefrom was to be used in the construction of the new barn.

Before the contract was signed, the manager of the defendant and Mr. Lowe inspected the premises and the old barn thereon, and the manager designated the lumber from the old barh that would be used in the construction of the new barn. The work of razing the old barn was commenced June 5, 1937. Several changes were made in the construction of the barn to suit the tenant, and at times, when Mr. Lowe and his son would call at the lumber office of the defendant at St. Edward, Nebraska, the manager of the defendant and Mr. Lowe would talk over the changes required by the tenant. The barn was to be built to suit the convenience of the tenant. During the course of construction of the barn many changes were suggested by the tenant and some by defendant's manager, which were talked over at the lumber office by Lowe and the manager; such changes were made. Most of them provided for the placing of doors at different points, enlarging the mangers, providing for a cement floor in front of the cattle stalls, and making a grain bin instead of a horse stall at one point, and other changes. While the changes were numerous, in most instances no greater amount of material or labor was necessary to complete them; no extra charge was made by Mr. Lowe, and nothing was said as to an additional charge with the exception of a charge for a cupola, placed on the barn, for which Mr. Lowe received $5. The record does not disclose exactly when or how the changes were agreed upon. The manager of defendant left about June 15, 1937, on a vacation and returned a few days after Mr. Lowe's death. No representative of the defendant was on the premises after the signing of the contract. On July 7 1937, Mr. Lowe was working on a hay fork hood, putting on siding, when the scaffolding on which he stood gave way, severely injuring him, and from such injuries he died July 17, 1937. After his death his son, who was then working on the job, went ahead and completed it.

While the manager of defendant was on his vacation and after Mr. Lowe fell, one Wright was at the yard and apparently in charge. Wright went on the premises at one time and told the deceased's son how the hay door should be constructed, and the manner in which it would be most solid and hang the best. The son followed his directions. No other direction was given by Wright. Defendant's manager went on the premises once after Mr. Lowe's death, while the son was completing the job, and at that time talked about the changes in the mangers and the hardware needed to complete the barn, and some conversation was had about a cement floor in the horse barn which was not placed therein.

The plaintiff offered in evidence exhibit 2, a statement to the Penn Mutual Life Insurance Company for the construction of the barn, dated August 9, 1937, in an account with the defendant. This statement showed a total amount of $1,391.08 and contained the following: Workmen's compensation insurance on $330, $20.26; public liability insurance on $330, 82 cents. There was also offered in evidence exhibit 4, purporting to be copy of a letter written by the defendant to New Amsterdam Casualty Company under date of June 10, 1937, informing the company that defendant had taken a building contract for labor and material on a farm building on the Hill farm, the letter containing the following paragraph: " A complete record of the labor on this job will be sent in to our Omaha office and will be on file here for your auditor when he audits our payroll."

After the barn was completed and all expenses paid by the...