Nollett v. Holland Lumber Co.

• Decision Date: 29 May 1942
• Docket Number: 31414.
• Citation: Nollett v. Holland Lumber Co., 141 Neb. 538, 4 N.W.2d 554 (Neb. 1942)
• Parties: NOLLETT v. HOLLAND LUMBER CO.
• Court: Nebraska Supreme Court

4 N.W.2d 554

141 Neb. 538

NOLLETT v. HOLLAND LUMBER CO.

No. 31414.

Supreme Court of Nebraska

May 29, 1942

Syllabus by the Court.

1."The burden of proof is on the employee to prove by a preponderance of the evidence that personal injury was caused to the employee by an accident arising out of and in the course of his employment."Bartlett v. Eaton, 123 Neb 599, 243 N.W. 772.

2."Liberal construction of the workmen's compensation law to give effect to its purpose is a rule too well settled to admit of controversy, but the statute cannot be liberalized by judicial interpretation to allow noncompensable claims."Burlage v. Lefebure Corporation137 Neb. 671, 291 N.W. 100.

3.In determining whether one is a servant or an independent contractor, the following facts may be considered: (a) The extent of control the master may exercise over the details of the work; (b) whether one is engaged in a distinct occupation or business; (c) whether the work is usually done under the direction of the employer, or by a specialist without supervision; (d) the skill required; (e) which one supplies the tools or equipment; (f) the length of employment; (g) the method of payment,-by the time, or by the job.

An "independent contractor" is one rendering service representing the wishes of the person for whom the work is done, only with respect to the result accomplished, not as to the means.

Gray & Brumbaugh, of Omaha, for appellant.

Wear Boland & Nye, of Omaha, for appellee.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and YEAGER, JJ.

PAINE Justice.

This is a workmen's compensation case, to recover for the death of plaintiff's husband, who was accidentally killed when he fell from a roof upon which he was working.The plaintiff secured an award from a judge of the compensation court, which award was set aside by the district court, from which judgment plaintiff appeals.

Defendant for its petition on appeal alleges that the plaintiff, Evelyn Nollett, filed petition in the Nebraska workmen's compensation court, alleging that she is the special administratrix of the estate of Felix O. Nollett, deceased; that Felix O. Nollett was an employee of the Holland Lumber Company, and as such employee sustained personal injuries, from which he died on June 13, 1941, and that at the time of his injuries and death he was earning $40 a week.Defendant alleges that thereafter it filed answer, admitting the injuries, but denying that Nollett was an employee of defendant, and alleging that said deceased and one Clyde Dirst formed a co-partnership and as such were independent contractors, and that, while in the performance of said contract, and while acting as an independent contractor, deceased suffered the injuries from which he died.

The petition alleges that a hearing was had before the Nebraska workmen's compensation court, and on October 11, 1941, the court entered an award in favor of plaintiff and against defendant.Defendant states that the award and the findings of fact by said compensation court were not supported by the evidence, and that said court acted without or in excess of its power, and prays that the award be vacated and held for naught, and that the court enter a decree finding that Felix O. Nollett, deceased, was not an employee of defendant on June 13, 1941, but that he was an independent contractor, and that his injuries and death occurred while in the performance of an independent contract.

Attached to the petition as exhibit A is the award of the compensation court, granting plaintiff, Evelyn Nollett, compensation in the sum of $13.83 a week during a period of 325 weeks, and also the amounts of $150 for funeral expenses and $100 for medical expense, and to attorney Lawrence F. Welch the sum of $35 for legal services rendered to plaintiff.

Answer was filed by plaintiff, Evelyn Nollett, on October 23, 1941, admitting the filing of her petition in the Nebraska workmen's compensation court, in which she alleged that her husband, Felix O. Nollett, was on June 13, 1941, in the employ of defendant company as a roof applicator, and while so employed he fell and was killed in an accident which arose out of and in the course of his employment; that Nollett had been earning approximately $40 a week, and that because of such accident and death of her husband she is entitled, for the benefit of herself and two minor children, to be awarded the sum of $15 a week for 325 weeks, together with medical and funeral expenses.Plaintiff denies each and every allegation of defendant's petition on appeal except such as are admitted to be true.

On January 5, 1942, after trial, a judgment was entered by the district court, finding that plaintiff's decedent and one Clyde Dirst, who were operating as a roof applicating team, were applying a roof at 2226 Howard street, Omaha, on June 13, 1941; that decedent accidentally fell from said roof and received injuries from which he died on said date; that at the time of his injuries and his resulting death plaintiff's decedent was an independent contractor, and not an employee of defendant, but that Felix O. Nollett and Clyde Dirst were engaged in the performance of a contract entered into between the Holland Lumber Company and themselves, and while in the performance of said contract as such independent contractors plaintiff's decedent received the injuries from which he died.

The court further finds that the award of the compensation court is not supported by the evidence, and is contrary to law, and that plaintiff is not entitled to any benefits under the workmen's compensation act of Nebraska, Comp.St.1929, § 48-101 et seq.It was therefore adjudged and decreed that the award of the compensation court be set aside and vacated, that the appeal by defendant to the district court be sustained, and the action of the plaintiff dismissed.

It appears from the briefs and argument that this is the first case of injury to a roof applicator which has come to this court, and that the only question to be determined is whether the injured man was an employee or an independent contractor.

This court has held that whether one is an employee or an independent contractor, within the meaning of the workmen's compensation law, must be determined from the facts in the particular case, rather than from any particular feature of the employment or service.Knuffke v. Bartholomew, 106 Neb. 763, 184 N.W. 889;Claus v. DeVere, 120 Neb. 812, 235 N.W. 450;Showers v. Lund, 123 Neb. 56, 242 N.W. 258.Therefore, it will be necessary to set out briefly the facts in the case at bar.

On the following facts there is little dispute: Nollett was one of a roofing team, the other being Clyde Dirst.Nollett had been a carpenter, working on repairs to property, also he had worked for the Skaggs Store people.Dirst was not a carpenter by trade, but his experience had been confined to roofing.It is more satisfactory if two men work together in applying roofs and the two of them applied to the Holland Lumber Company together for roofing work.These men each owned the necessary tools, ladders and scaffolding.Nollett owned a car, in which they hauled their equipment to the job.The second time they applied to the Holland Lumber...