Peterson v. Christenson

• Decision Date: 20 March 1942
• Docket Number: 31339.
• Citation: 3 N.W.2d 204,141 Neb. 151
• Parties: PETERSON v. CHRISTENSON.
• Court: Nebraska Supreme Court

3 N.W.2d 204

141 Neb. 151

PETERSON v. CHRISTENSON.

No. 31339.

Supreme Court of Nebraska

March 20, 1942

Syllabus by the Court

1. "Whether the deceased was an employee or an independent contractor cannot be decided by a hard and fast rule. The relationship can only be established by a consideration of the facts and circumstances of the case." Prescher v Baker Ice Machine Co., 132 Neb. 648, 273 N.W. 48.

2. "An independent contractor usually enters into a contract to do a specified piece of work for a specific price; makes his own subcontracts; employs, controls, pays and discharges his own employees; furnishes his own tools and materials; and directs and controls the execution of the work." Prescher v. Baker Ice Machine Co., 132 Neb. 648 273 N.W. 48.

Chambers, Holland & Locke, of Lincoln, for appellant.

Vasey & Mattoon, of Beatrice, for appellee.

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

SIMMONS Chief Justice.

This is a workmen's compensation case. It presents the sole question, was the plaintiff an independent contractor or an employee of the defendant? Trial was had to one judge of the compensation court who held that plaintiff was an independent contractor and dismissed plaintiff's petition. Rehearing was waived and an appeal was taken to the district court and trial had. That court held he was an employee. The question is now presented to this court subject to the statutory provision that the judgment of the district court may be set aside only upon the ground "That the findings of fact are not conclusively supported by the evidence *** and if so found, the cause shall be considered de novo upon the record." Comp.St.Supp. 1941, § 48-174.

The facts are not difficult nor in serious dispute. Plaintiff is a "cement finisher and common laborer." Defendant had a business building which he was redecorating. There was a small piece of plaster off on the inside and also a few places outside under the marquee that needed patching. Defendant says plaintiff came by and suggested that he (plaintiff) plaster these places. Plaintiff says that as he was passing the building the defendant asked him to do the plastering. In any event, plaintiff agreed to return the next morning and do the job. Nothing was said as to pay, etc. The next morning plaintiff came to the job with his tools. Defendant asked what materials were necessary. Together plaintiff and defendant went to the lumber yard, got the materials, which were charged to the defendant, and returned to the building. Defendant furnished a stepladder, bucket and water. Plaintiff mixed the materials. Defendant told plaintiff to do the inside job first, which he did. He then went outside, and while working there the ladder slipped, and plaintiff got some lime in his eye. A friend suggested a first aid remedy which was applied. Defendant then advised plaintiff to go to a doctor, naming him; he was not known to plaintiff. Plaintiff went to the doctor and was treated. Plaintiff did not agree to pay and did not pay the doctor. The record does not show who agreed to pay the doctor or whether or not he was paid. The amount of his bill was stipulated.

Plaintiff had previously done work for the defendant for which he submitted bills and was paid on the basis of a certain amount an hour. Plaintiff says he expected to submit a similar bill for this work, but had not done so at the time of the trial. Plaintiff did not finish the job nor have it finished. The job, had it been completed, would have taken about one and one-half hours to perform.

Defendant argues that an employer, under such circumstances as these, ought not to be responsible under the compensation act. That is not a question for the court but for the legislative body to decide.

The statute is broad. Leaving out language not necessary here, an employer is defined as one "who is engaged in any trade, occupation, business, or profession *** and who has any person in service under any contract of hire, express or implied, oral or written ***." Comp.St.1929, sec. 48-114. An employee is defined as "Every person in the service of an employer" as above described under such a contract.

This court has on a number of occasions undertaken to define an independent contractor as distinguished from an employee. In Petrow & Giannou v. Shewan, 108 Neb. 466, 187 N.W. 940, 941, we said: "The issue as to whether or not a workman is an employee, as distinguished from an independent contractor, is to be determined from all the facts in the case. There is no single test by which that determination can be made. An independent contractor is generally distinguished as being a workman who is independent in his employment; one 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 his work. He is not in such a case a servant of his employer; nor can he be controlled by the employer in the manner of doing the work, except to the extent that the employer has the right to give such directions as may be found necessary to insure compliance with the contract."

Again, in Reeder v. Kimball Laundry, 129 Neb. 306, 261 N.W. 562, 563, we quoted with approval the following from a text: "The true test of a 'contractor' would seem to be, that he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work and not as to the means by which it is accomplished. *** In actual affairs an independent contractor generally pursues the business of contracting, enters into a contract with his employer to do a specified piece of work for a specific price, makes his own subcontracts, employs, controls, pays and discharges his own employees, furnishes his own material and directs and controls the execution of the work. Where these conditions concur there is, of course, no difficulty in determining his character as such. It is only where one or more of them is lacking that a question arises. The one indispensable element to his character as an independent contractor is that he must have contracted to do a specified work and have the right to control the mode and manner of doing it."

Again, in Prescher v. Baker Ice Machine Co., 132 Neb. 648, 273 N.W. 48, 49, we said:

"Whether the deceased was an employee or an independent contractor cannot be decided by a hard and fast rule. The relationship can only be established by a consideration of the facts and circumstances of the case. Showers v. Lund, 123 Neb. 56, 242 N.W. 258. An independent contractor usually enters into a contract to do a specified piece of work for a specific price; makes his own sub-contracts; employs, controls, pays and discharges his own employees; furnishes his own tools and materials; and directs and controls the execution of the work. As we said in the case of Reeder v. Kimball Laundry 129 Neb. 306, 261 N.W. 562, where these conditions concur, there is no difficulty in determining his character as such. It is only when one or more of these conditions do not exist that a question arises.

"The one indispensable element to his character as an independent contractor is that he must have contracted to do a specified...