Sherlock v. Sherlock

• Decision Date: 29 December 1924
• Docket Number: 24193
• Citation: 201 N.W. 645,112 Neb. 797
• Parties: PETER W. SHERLOCK, JR., APPELLEE, v. PETER W. SHERLOCK, SR.: RICHARDSON DRUG COMPANY, APPELLANT
• Court: Nebraska Supreme Court

201 N.W. 645

112 Neb. 797

PETER W. SHERLOCK, JR., APPELLEE, v. PETER W. SHERLOCK, SR.: RICHARDSON DRUG COMPANY, APPELLANT

No. 24193

Supreme Court of Nebraska

December 29, 1924

APPEAL from the district court for Douglas county: WILLIAM G HASTINGS, JUDGE. Affirmed.

AFFIRMED.

Kennedy Holland, De Lacy & McLaughlin, for appellant.

Robert A. Nelson and W. H. Herdman, contra.

Heard before MORRISSEY, C. J., LETTON, ROSE, DEAN, GOOD and THOMPSON, JJ. LETTON, J., dissents.

OPINION

ROSE, J.

This is a proceeding under the workmen's compensation law. The name of plaintiff, an injured employee seeking compensation, is Peter W. Sherlock, Junior. There are two defendants. The name of one of them is Peter W. Sherlock, Senior, the father of the plaintiff. The other defendant is the Richardson Drug Company, a corporation engaged in the wholesale drug business. In conducting that enterprise it owns, occupies and uses a five-story brick building at Ninth and Jackson streets, Omaha. Defendant Sherlock, as an independent contractor. June 29, 1923, agreed with the corporation to paint exterior parts of its building for $ 135 and to hold it harmless in the event of an accident to himself or to any of his employees. In contemplation of the painting the corporation in letting the contract did not obtain insurance for the protection of injured workmen nor require defendant Sherlock to do so. He did not procure insurance for that purpose but employed plaintiff as a painter at $ 29.70 a week. While the latter was at work in that capacity on the exterior of the building, the staging under him gave way. In the resulting fall he was severely injured. In a proceeding before the compensation commissioner both defendants were held liable to plaintiff for $ 15 a week. From the award therefor the corporation alone appealed. In the district court the defenses may be summarized as follows: The corporation was not the employer of plaintiff. He was employed by defendant Sherlock, an independent contractor. The painting on the outside of the building was not done in the usual course of the corporation's business. Plaintiff was not an employee of the corporation within the meaning of the compensation law. Upon a trial of the issues in the district court judgment was rendered against both defendants in favor of plaintiff for compensation of $ 15 a week, and an attorney's fee of $ 250. The corporation again appealed.

There is no conflict in the evidence. On the facts outlined, is plaintiff entitled to compensation from the corporation? The solution is not free from difficulties and in some respects judicial opinion is not harmonious. The decision depends on the meaning of the workmen's compensation law when applied to the undisputed facts.

While defendant Sherlock was an independent contractor and the corporation did not directly employ plaintiff, the statute seems to create a liability for compensation for a failure to procure insurance for the protection of workmen. Among the provisions of the workmen's compensation act are the following:

"Any person, firm or corporation creating or carrying into operation any scheme, artifice or device to enable him, them or it to execute work without being responsible to the workmen for the provisions of this article, shall be included in the term 'employer' and with the immediate employer shall be jointly and severally liable to pay the compensation herein provided for and be subject to all the provisions of this article. This section, however, shall not be so construed as to cover or mean an owner who lets a contract to a contractor in good faith, or a contractor who, in good faith, lets to a subcontractor a portion of his contract, if the owner or principal contractor, as the case may be, requires the contractor or sub-contractor, respectively, to procure a policy or policies of insurance from an insurance company licensed to make such insurance in this state, which policy or policies of insurance shall guarantee payment of compensation according to this article to injured workmen." Comp. St. 1922, sec. 3039.

The terms, "any scheme, artifice or device," as they are thus used, do not necessarily imply active fraud or evil design. Any one resorting to such means under the circumstances described in the legislation on this subject may be included within the term "employer." Defendant Sherlock and the corporation meant to release the latter from liability for compensation of a painter, if injured while at work on the exterior of the building. The independent...