Prescher v. Baker Ice Mach. Co.

• Decision Date: 23 April 1937
• Docket Number: 30087.
• Citation: 273 N.W. 48,132 Neb. 648
• Parties: PRESCHER v. BAKER ICE MACHINE CO. ET AL.
• Court: Nebraska Supreme Court

273 N.W. 48

132 Neb. 648

PRESCHER v. BAKER ICE MACHINE CO. ET AL.

No. 30087.

Supreme Court of Nebraska.

April 23, 1937

Syllabus by the Court.

1. " 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.

2. A person who contracts to unload a car of coal from a railroad car to the employer's coal bin for 25 cents a ton; who has the right to employ his own assistants; who has the right to determine the hours of labor; and who has the power to direct how and when the detail of the work shall be performed is an independent contractor within the meaning of the Workmen's Compensation Law (Comp.St.1929, § 48-101 et seq., as amended).

Appeal from District Court, Douglas County; Hastings, Judge.

Proceeding under the Workmen's Compensation Act by Anna Prescher for the death of her son, claimant, opposed by the Baker Ice Machine Company, employer. From a judgment granting an award of compensation, the employer appeals.

Reversed.

Brown Fitch & West, of Omaha, for appellant.

Lawrence I. Shaw and William H. Thomas, both of Omaha, for appellee.

Heard before GOSS, C. J., GOOD, EBERLY, DAY, PAINE, and CARTER, JJ., and BLACKLEDGE, District Judge.

CARTER, Justice.

This is a suit brought under the Workmen's Compensation Law (Comp.St.1929, § 48-101 et seq., as amended). The plaintiff, Anna Prescher, as a dependent, obtained an award of compensation in the district court on account of injuries suffered by and resulting in the death of her son, Arthur Prescher. From this award, defendant Baker Ice Machine Company appeals.

The only question necessary for our consideration is whether the deceased was an employee of the defendant Baker Ice Machine Company or an independent contractor.

The deceased sustained injuries resulting in his death while unloading a car-load of coal for the Baker Ice Machine Company. The evidence shows that on and prior to January 9, 1936, Rudolph Prescher, a brother of the deceased, was regularly employed by the Baker Ice Machine Company. It appears that Rudolph Prescher learned that the Baker Ice Machine Company would soon have a car of coal to unload and he inquired of one Stender, the foreman in charge of the coal, if his brother Arthur could have the job of unloading. It also appears that he informed Arthur that evening that he might get the job of unloading the coal. The next day Arthur Prescher and W. H. King, a roomer at the Prescher home, went to the plant of the Baker Ice Machine Company and applied for the job of unloading the coal. Neither of them had previously worked for the defendant company. Stender, the foreman, gave them the job and told them that he would call them when the coal came in. It was also agreed that they were to receive 25 cents a ton for unloading the coal. On January 8, Stender notified them that the coal was in and that they could start work the next morning. On the morning of January 9, at 7 or 7:15 o'clock, they appeared at the plant of the Baker Ice Machine Company and the night watchman gave them the tools and planking necessary to carry on the work. Arthur Prescher received his injuries at or about 3 p. m. of the same day in an unknown manner but apparently by a fall.

Plaintiff contends that the deceased was an employee because of evidence tending to show that Stender, the company foreman was directing the work. The evidence on this point shows that in the forenoon it became necessary to move the car and that Prescher and King were unable to do it with the means at hand. Stender sent a number of regular employees and a company truck to assist, and, upon...