Showers v. Lund
| Decision Date | 08 April 1932 |
| Docket Number | 28287 |
| Parties | LEE SHOWERS, APPELLANT, v. ALVIN C. LUND, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Buffalo county: BRUNO O HOSTETLER, JUDGE. Reversed.
REVERSED.
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, but that relation must be determined from all the facts in each particular case.
2. One (1) who is engaged in hauling gravel from the employer's pit to a county highway project, where the employer is required to deliver it under his contract with the county; (2) who uses his own truck, furnishes it with gas and oil and keeps it in repair; (3) who is paid seven cents a cubic yard a mile for gravel hauled from pit to project; (4) who has no specific term of employment, no specific quantity of gravel to haul and whose engagement can be terminated without liability by either party at will; (5) whose loading of gravel is supervised and controlled by the employer's foreman at the pit and whose unloading is checked at the place of delivery and whose work generally is under the control of the employer; (6) whose earnings are computed by the employer and credited weekly; (7) who works continually at the employment from its beginning until his injury arising out of and in the course of his employment, is held to be an employee within the meaning of the Workmen's Compensation Law.
Appeal from District Court, Buffalo County; Hostetler, Judge.
Proceedings under the Workmen's Compensation Act by Lee Showers, claimant, against Alvin C. Lund, employer. From a judgment of the district court, on appeal from the compensation commissioner, denying compensation, the claimant appeals.
Judgment reversed, and cause remanded.
Miller & Blackledge, for appellant.
Dryden & Dryden, contra.
Heard before GOSS, C. J., ROSE, DEAN, GOOD, DAY and PAINE, JJ., and LOVEL S. HASTINGS, District Judge.
The compensation commissioner and the district court in turn denied compensation on the ground that plaintiff was not an employee but was an independent contractor. That is the only ground of this appeal.
Whether one is an employee or an independent contractor must be determined from the circumstances of each particular case. Potter v. Scotts Bluff County, 112 Neb. 318, 199 N.W. 507. Claus v. DeVere, 120 Neb. 812, 816. The nature of the relation must be determined from all the evidence. Barrett v. Selden-Breck Construction Co., 103 Neb. 850, 174 N.W. 866. On the issue as to whether a workman is an employee as distinguished from an independent contractor, his relation to his employer should be determined from all the facts rather than from any particular feature of the employment or service. Knuffke v. Bartholomew, 106 Neb. 763, 184 N.W. 889.
Alvin C. Lund was engaged in furnishing gravel from his pit to a county highway construction project. He employed Lee Showers, together with others, to haul this gravel from the pit from which it was pumped to the highway where it was to be used. Some of these drivers used Lund's trucks and others used their own. Showers used his own truck, furnished its gas and oil and kept the truck in repair. His truck held two cubic yards of gravel. He received seven cents per cubic yard per mile for the gravel hauled from the pump to where it was dumped on the highway. Showers had previously hauled gravel for Lund and knew the work. There was no specific term of employment nor specific amount of gravel agreed to be hauled, and no definite hours of labor were prescribed. The contract of employment was oral. Either party could terminate the relationship at will. Showers began hauling gravel on April 28, 1931. The length of haul was then about eleven miles. He continued until his injury on June 23, when the haul had been gradually shortened to about eight miles. While hauling a load from the pit to the highway under construction, appellant was injured in a collision with an automobile. There is no doubt that he was injured in the course of his employment. The only question is as to whether he was an independent contractor, as the district court held, or an employee, as he claims.
The pleadings and evidence on this point are meager, but they permit the inference that the contract of Lund was with Adams county to deliver the gravel on a road project in that county at places specified by the overseer of the project. Lund had a foreman at the pit to see that the haulers loaded their trucks properly and the county had checkers to see that proper loads were delivered on the project. It appears from the testimony of Lund that Showers worked continually except when prevented by rain and by a breakdown of the pump. He drove his own truck all the time. Lund received reports, kept books and checked the accounts every week. He computed the amount due on the loads and miles and gave Showers credit each week.
A case very similar in its facts was recently decided by this court but not on this precise point. There the appellee used some of its own trucks and also hired a considerable number of others, among them that of the appellant, to haul paving material at 20 cents a ton mile from appellee's yard to the place of paving several miles away. But there it was held that the appellant's injury did not arise out of and in the course of his employment. This conclusion rendered unnecessary the discussion and decision of other questions; so the question, as to whether the appellant was an independent contractor or an employee covered by the act, was not decided. Pappas v. Yant Construction Co., 121 Neb. 766, 238 N.W. 531.
Much learning has been written into the decisions of the courts on the distinctions between an employee and an independent contractor. The result is confusing. It is difficult to reconcile the diverse results derived from quite similar facts. Some apparent inconsistencies are traceable to local statutes. In writing of the diversity and confusion of opinion in the precedents in different jurisdictions, the Iowa supreme court said: "In this state of the precedents we can only hope to maintain, if we may, consistency in our own decisions." Burns v. Eno, 240 N.W. 209.
Section 48-115, Comp. St. 1929, of our workmen's compensation law defines an "employee" as including "every person in the service of an employer who is engaged in any trade, occupation, business or...
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