Reeder v. Kimball Laundry

Decision Date14 June 1935
Docket Number29526.
Citation261 N.W. 562,129 Neb. 306
PartiesREEDER v. KIMBALL LAUNDRY ET AL.
CourtNebraska Supreme Court

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.

2. " 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.

3. One who contracts to haul coal from railroad cars to the employer's coalbins, furnishing his own truck, appliances and labor, at 55 cents a ton payable after each car-load is hauled; who may perform the work himself or hire others to do it; who has a right to hire and discharge his assistants, fix their wages and hours of labor, and is liable for their compensation; and who has the power to direct when, where and how the detail of the work shall be performed is, within the meaning of the Workmen's Compensation Law, an independent contractor, and not an employee.

Appeal from District Court, Gage County; Messmore, Judge.

Proceedings under the Workmen's Compensation Law by Leonard A Reeder, claimant, opposed by the Kimball Laundry and another. From a decree of the district court, on appeal from the compensation commissioner, granting compensation to the claimant, defendants appeal.

Judgment reversed, and cause dismissed.

Sackett & Brewster and Dean R. Sackett, all of Beatrice, for appellants.

Killen & Van Borkum, of Beatrice, for appellee.

Heard before GOSS, C. J., ROSE, EBERLY, DAY, PAINE, and CARTER, JJ., and RYAN, District Judge.

CARTER, Justice.

This is a suit under the Workmen's Compensation Law (Comp. St. 1929, § 48-101 et seq.). The plaintiff, Leonard A. Reeder, recovered an award before the compensation commissioner from which an appeal was taken to the district court. From a decree in favor of the plaintiff, the defendant brings the case to this court on appeal.

The only question involved is whether the plaintiff was an employee of the defendant or an independent contractor.

The plaintiff sustained a broken wrist in cranking his truck while hauling coal for the defendant. The evidence shows that for eight or nine years prior to the injury the plaintiff had done general draying and hauling for the defendant, including the hauling of coal, salt and trash. Plaintiff received 55 cents a ton for hauling coal, he furnishing his own truck and employing what extra help he required. The evidence was that whenever a car of coal arrived on track the plaintiff was called, informed of that fact and told where to put the coal. When the car was unloaded plaintiff was given a check for the full amount due him. The testimony shows that plaintiff hauled for other persons when not doing dray work for the defendant. Plaintiff contends that he was at all times under the absolute control of defendant while doing the work. We think that a fair interpretation of the evidence is that defendant directed plaintiff where to put the coal and saw to it that the contract was carried out as agreed. The plaintiff controlled all the details of the work. He determined the hours he should work, selected and paid his own helpers, he could haul the coal himself or employ others, and could work for others whenever he desired. After a car of coal was unloaded the defendant was under no obligation to give him work and he was under no obligation to work for the defendant. After plaintiff was employed to unload a car of coal, we believe, after a reading of the evidence, that he could not be discharged without liability on the part of the defendant. The only recourse defendant had was to refrain from engaging him in further jobs.

" 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." 1 Shearman and Redfield, Law of Negligence (6th Ed.) 395, § 164.

In Potter v. Scotts Bluff County, 112 Neb. 318, 199 N.W 507, 509, this court said: " In the instant case it will be observed that the contract did not require the work to be performed by the contractors, but they might employ others to perform the work. No particular time was stipulated within which the work should be performed. The contractors or their employees could work to suit their own convenience; keep their own time; determine during what hours they should perform the work; determine what days they should or should not work; determine whether the gravel should be hauled by teams or motor trucks; determine the size of the loads and have control over all of the details of performing the labor. They were at liberty to hire as many men as they saw fit. They might have completed the work within a week or might have taken 60 to 90 days in which to do it. They were at liberty to determine the wages they would pay to the hired men, the price they would pay for teams, and were to furnish their own tools and equipment. On the other hand, while the contract specified that the work should be done subject to the instruction of the county highway commissioner, it is apparent that his only concern, or the county's concern, was in seeing that the proper kind and amount of...

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