Shamburg v. Shamburg

• Decision Date: 27 December 1950
• Docket Number: No. 32912,32912
• Citation: 45 N.W.2d 446,153 Neb. 495
• Court: Nebraska Supreme Court
• Parties: SHAMBURG v. SHAMBURG.

Page 446

45 N.W.2d 446

153 Neb. 495

SHAMBURG v. SHAMBURG.

No. 32912.

Supreme Court of Nebraska.

Dec. 27, 1950.

Syllabus by the Court

1. Under the Workmen's Compensation Act the relation of employer and employee is dependent upon the contract for hire.

2. The relation of employer and employee is the same relation as is familiar throughout the law under the name of master and servant, except that to be an employee, as distinguished from a servant, one must serve under a contract of hire.

3. In ascertaining when a person is an employee of another, although is contract of employment is not directly made with such person, each case must be decided on its peculiar facts and ordinarily no one feature of relationship is determinative.

4. The general test in determining whether an employee is a servant of his original master or of the party to whom he has been furnished, is whether in the particular service which he is engaged to perform he continues to be liable to the direction and control of his master, or becomes subject to that of the party to whom he is lent or hired. Other factors are looked to only to aid in determining whether such relationship exists in a given case.

5. In order to transfer liability from the general employer of a loaned employee to the borrowing employer, there must be some consensual arrangement sufficient to create a new employer-employee relationship.

6. Where an employee at the command and pursuant to the direction of his employer enters the service of another, no new employer-employee relationship is created; the consent necessary to shift the employer-employee relationship from the general to the special employer cannot be inferred from the fact that the employee obeyed the commands of the master in entering such service.

7. From a review of the evidence in this case, the loaned employee at all times remained the employee of the original employer with whom he had a contract for hire, and the compensation award entered by the district court is conclusively supported by the evidence.

Jack, Vette & Elliott, Beatrice, for appellant.

Hubka & Hubka, Beatrice, for appellee.

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

MESSMORE, Justice.

This is a workmen's compensation case brought by Mary Shamburg against Vernon Shamburg, doing business as the Fairbury Cement Block Company, to recover death benefits under the workmen's compensation law by reason of an accident sustained by her husband Orin Shamburg which resulted in his death while in the employ of the defendant.

On December 15, 1949, plaintiff filed her petition in the Nebraska Workmen's Compensation Court, wherein she alleged her husband was killed while in the employ of the defendant, and prayed for relief in accordance with the workmen's compensation law. The defendant and his insurance carrier filed answer to the petition, and alleged that the plaintiff's husband, at the time of his death, was not an employee of the defendant but was actually in the employ of one R. M. Weblemoe; prayed for dismissal of the plaintiff's petition and that R. M. Weblemoe, doing business as the Weblemoe Sand and Gravel Company or Weblemoe & Company, be made a party to the action; and that the cause be continued until process could be completed on R. M. Weblemoe as designated, and the issues joined. The motion to make R. M. Weblemoe, as before mentioned, a party was overruled.

On February 16, 1950, after hearing had before a judge of the workmen's compensation court, an award was entered in favor of the plaintiff and against the defendant in the sum of $22 a week for a period of 325 weeks from and after September 30, 1949, the date of the accident resulting in the death of the plaintiff's husband, and in addition, the sum of $250 funeral benefits.

On February 28, 1950, the defendant filed an application for rehearing before the entire workmen's compensation court, setting up the errors alleged to have been committed by the judge granting the award. On May 6, 1950, after hearing had before the entire compensation court on rehearing, an award was granted the plaintiff sustaining the award previously granted. Notice of appeal from rehearing was filed by the defendant May 12, 1950, in the workmen's compensation court.

On May 19, 1950, the defendant filed a petition on appeal in the district court for Jefferson County setting forth the proceedings had in the workmen's compensation court; alleging in addition that the deceased was at the time of his accidental death an employee of R. M. Weblemoe; and alleging error in the granting of the award by the workmen's compensation court in its findings of fact and in failing to join R. M. Weblemoe in the action. The plaintiff filed an answer to the petition on appeal reiterating the allegations of her petition filed in the workmen's compensation court, and prayed for death benefits as provided for by law. The cause was tried before the district court for Jefferson County on the evidence adduced in the hearing before the entire workmen's compensation court. The trial court entered an award affirming the award granted by the workmen's compensation court.

Upon the overruling of the defendant's motion for new trial, defendant perfected appeal to this court.

We will refer to the parties as originally designated in the workmen's compensation court.

The principal assignments of error are: (1) The findings of fact by the trial court are not sustained by the evidence; and (2) the award entered by the trial court is contrary to law.

That the plaintiff is entitled to the benefits under the workmen's compensation law is not questioned. The question as to whether the defendant is liable for the payments of the same constitutes the sole issue in the case.

Both parties treat the assignments of error as sufficient to require a review here under the provisions of section 48-185, R.S.1943, that a judgment of the district court may be modified or set aside only upon the ground that 'the findings of fact are not conclusively supported by the evidence as disclosed by the record, and if so found, the cause shall be considered de novo upon the record.'

Defendant asked for a trial de novo. Plaintiff submits that the award is conclusively supported by the record. This procedure calls for us to review the evidence. If upon that review we find the award is conclusively supported by the evidence, that ends the matter. If, however as a result of a review of the evidence on a trial de novo we find that the award should be sustained, it is not necessary to determine the question as to whether the award is 'conclusively supported by the evidence.' If we find as a result of a trial de novo that the award should be modified or set aside, then obviously it is not conclusively supported by the evidence. We so review this evidence. See Werner v. Nebraska Power Co., 149 Neb. 408, 31 N.W.2d 315.

For convenience we will refer to Orin Shamburg as Orin, to Vernon Shamburg as Vernon, and to R. M. Weblemoe as Weblemoe.

The facts are in little dispute, if any. Mary Shamburg, her husband Orin, and a minor son lived together in Fairbury and were so living on September 30, 1949, at the time Orin met with an accident which proved fatal. The wife and son were dependents of the husband and father. Vernon, an elder son, had full time employment with an electric company. In October 1947, he purchased a building and equipment located on the ground belonging to Weblemoe who is engaged in the sand and gravel business. The purchase was made from Weblemoe, and Vernon became the sole owner of the property, his purpose being to manufacture and sell cement blocks. Due to the fact that he was steadily employed, he hired Orin to oversee, supervise, and manage the cement block business. He paid Orin by the hour, once a month, carried him as an employee on the records, noted the payment of salary on the audit account, turned in the wages of Orin for compensation insurance, and paid the social security assessments on Orin's wages. Orin's occupation was given as yard worker in the workmen's compensation insurance policy carried by Vernon. A stock pile of cement blocks was kept on hand for sales, which in such industry are generally made during the building season in the spring and fall. During the winter when the days are warm enough the cement blocks are manufactured. These matters were attended to by Orin. Vernon did the book work involved in the business.

In the fore part of January 1949, Vernon and Weblemoe entered into an arrangement whereby Orin would work for Weblemoe who at the time had something for Orin to do. Orin was not needed full time at the cement block plant, so Vernon loaned Orin to Weblemoe. Orin had no knowledge of the arrangement and made no objections to working for Weblemoe. Some discussion was had between Vernon and Weblemoe with reference to the compensation insurance. Vernon had always carried such insurance on Orin and it was agreed that that would continue, and that Orin would remain in the employ of Vernon.

Orin received wages of one dollar an hour. Vernon purchased sand from Weblemoe, and Weblemoe purchased products from Vernon. They had accounts between themselves, and Vernon was indebted to Weblemoe. Orin kept a record of the number of hours he worked for Weblemoe, and turned his report of the same over to Vernon once a month. The wages paid Orin by Vernon were in no manner dependent upon any money that might be received from Weblemoe. Weblemoe credited Vernon's account with the labor of Orin, which amounted to a dollar and ten cents an hour and included truck service and assessments on social security of Orin.

Orin always opened the business of the cement block company while he worked for Weblemoe, and, if needed, he would return to the business and attend to any matters in connection therewith that required attention. That was part of the arrangement between Weblemoe...