Riggins v. Lincoln Tent & Awning Co.

• Decision Date: 19 November 1943
• Docket Number: 31672.
• Court: Nebraska Supreme Court
• Parties: RIGGINS v. LINCOLN TENT & AWNING CO. et al.

11 N.W.2d 810

143 Neb. 893

RIGGINS v. LINCOLN TENT & AWNING CO. et al.

No. 31672.

Supreme Court of Nebraska

November 19, 1943

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; the correct relation must be determined from all the facts in each particular case.

2. A workman who is paid wages by the piece or quantity comes within the workmen's compensation law the same as one who is paid by the day.

3. The payment of a social security tax by a factory owner on the earnings of a workman is evidence tending to show that the workman was an employee.

4. Under the facts established in this case, as shown in the opinion, the plaintiff is held to be an employee and not an independent contractor.

5. An owner who inserts in a contract with his contractor a promise by the latter to procure compensation insurance for the workmen he employs does not escape liability for compensable injuries where the contractor fails to procure such insurance.

John S. Bishop and J. A. Brown, both of Lincoln, for appellants.

Baylor TouVelle & Healey, of Lincoln, for appellee.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.

CARTER Justice.

This is an action to recover benefits claimed to be due under the workmen's compensation law growing out of an accident to plaintiff during his employment by the defendant August Schreiber. The trial court entered judgment for plaintiff against the defendants Schreiber and Elrod. The defendants appealed.

The record shows that on May 17, 1941, the defendant Schreiber entered into a written contract with the Lincoln Tent & Awning Company to build automobile trailers. On or after December 14, 1941, the Lincoln Tent & Awning Company was dissolved and the defendant Elrod assumed all the obligations of the corporation. The contract between Schreiber and the Lincoln Tent & Awning Company provided that Schreiber was to carry compensation insurance on all employees, which he failed to do. The liability of Elrod is based on his assumption of the liabilities of the Lincoln Tent & Awning Company and the failure of that company to require Schreiber to obtain compensation insurance.

Plaintiff was engaged by Schreiber in June, 1941, to paint the trailers manufactured by Schreiber under his contract with the Lincoln Tent & Awning Company. The nature of the arrangement made between Schreiber and plaintiff is the principal question to be determined in this controversy. It is the theory of plaintiff that he was an employee of Schreiber, while the defendants claim that he was an independent contractor.

The evidence of Schreiber is that he told the plaintiff that "I would give him $2.50 a trailer to paint the trailers and we would furnish all the equipment and all the paint." It is established by the evidence that the arrangement made had no definite time within which it was to be performed and specified no particular number of trailers to be painted. At the direction of Schreiber plaintiff painted some trailers not manufactured by him and received $2 to $3 for each depending upon their size and condition. On one or two occasions plaintiff was directed by Schreiber to do sanding and varnishing inside a trailer for which he was paid 40¢ an hour. There is evidence that plaintiff painted on jobs in which Schreiber had no knowledge or concern. The evidence further shows that Schreiber instructed plaintiff as to the color of the paint to be used and the number of coats to be applied. Defendant Schreiber informed plaintiff when trailers were available for painting and the time when each was required to be completed. The work was all done in the factory operated by Schreiber. Plaintiff was paid in cash each Saturday night for the work that had been done during the week. Social security payments were deducted by Schreiber from the amounts owing plaintiff. Defendant Schreiber testified that he could terminate his relationship with plaintiff at any time by merely telling him to quit.

In Reeder v. Kimball Laundry, 129 Neb. 306, 261 N.W. 562, 563, we discussed the meaning of the term independent contractor in the following language: "'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. When 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."' See, also, Prescher v. Baker Ice Machine Co., 132 Neb. 648, 273 N.W. 48; Peterson v. Christenson, 141 Neb. 151, 3 N.W.2d 204.

It will be readily observed from an examination of these authorities that the question whether the plaintiff was an employee or independent contractor cannot be decided by the application of a general rule; it can be determined only from a consideration of the facts and circumstances of each case as they arise. In this respect the following facts tend to establish that plaintiff was an employee: The equipment and materials were furnished by the defendant Schreiber. Prescher v. Baker Ice Machine Co., supra. There was no definite time fixed within which the work was to be performed and no particular number of trailers were specified to be painted. Showers...