Wilds v. Morehouse

• Decision Date: 18 May 1950
• Docket Number: No. 32782,32782
• Citation: 152 Neb. 749,42 N.W.2d 649
• Parties: WILDS v. MOREHOUSE et al.
• Court: Nebraska Supreme Court

Page 649

42 N.W.2d 649

152 Neb. 749

WILDS v. MOREHOUSE et al.

No. 32782.

Supreme Court of Nebraska.

May 18, 1950.

Syllabus by the Court

1. The status of employee or independent contractor cannot be determined by any single test or rule, but must be established from a consideration of all the facts and circumstances of the case.

2. An independent contractor is one who renders service in the course of an independent occupation and who regards the will of the one for whom the work is done only as to the result of the work and not as to the means or mode by which it is accomplished.

3. Under the facts established in this case, as stated in the opinion, appellant was an independent contractor and not an employee within the meaning of the Workmen's Compensation Act.

Dryden, Jensen & Dier, Kearney, Bolus J. Bolus, Omaha, for appellant.

Arthur J. Nevins, Lincoln, Hamer, Tye & Worlock, Kearney, Neely & Otis, Omaha, for appellees.

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

BOSLAUGH, Justice.

Appellant seeks to recover from appellees benefits provided by the Nebraska Workmen's Compensation Act. The compensation court rejected his claim on the ground that he was an independent contractor. He waived rehearing and appealed to the district court for Buffalo County. A transfer of the case was, by virtue of a stipulation of the parties, made to the district court for Douglas County. Section 48-181, R.S.Supp., 1949. A trial therein resulted in a finding that appellant was not an employee of William N. Morehouse, appellee, and a judgment of dismissal. Motion of appellant for a new trial was denied and he has appealed. Royal Indemnity Company was the compensation insurance carrier of appellee and further reference to it here is not required.

The question to be decided is whether appellant was at the time of the accident engaged as an employee or an independent contractor. This cannot be determined by any single test or rule. The relationship must be established from a consideration of all the facts and circumstances of the case. Peterson v. Christenson, 141 Neb. 151, 3 N.W.2d 204; Prescher v. Baker Ice Machine Co., 132 Neb. 648, 273 N.W. 48.

Appellee owned and for many years operated a trucking business. He was authorized by both the Interstate Commerce Commission and the Nebraska State Railway Commission. He sometimes secured a truck operator to haul for him when the volume of his business exceeded the capacity of his equipment. Appellant purchased a tractor, rented a trailer, and engaged in and carried on a trucking business for several months prior to the accident involved in this case. He had no 'over-the-road' highway permit for either intrastate or interstate operation, but operated on the permits of other truckers. He was known as a 'wild catter.' He solicited regular licensed truckers to engage him to haul for them. He approached appellee on this basis in November of 1948. He had not done any work for appellee, but had solicited him for an engagement. Appellee made an investigation and later told appellant he had a load at Swift & Company for Saturday morning and he could go down and load it and then come to the home of appellee. That was on a Friday. The next morning appellant took his truck to the Swift plant and told the man in charge that he was there for a truckload for Denver, Colorado. The truck was loaded with 24,000 pounds of shortening and two barrels of glue. Appellant was given an invoice to take to appellee. He then went, as he had been requested to do, to the home of appellee and was told by him that the tariff was 55 cents a hundred-weight, and the difference between that and 15 percent of it, plus the wheel tax, would be paid him for taking and delivering the cargo to the Swift plant in Denver; that appellee would pay the expense of public liability and property damage insurance; and he gave appellant a letter to the port of entry so that he could enter and travel on the highways in Colorado. Appellee advanced or loaned him $90 which he requested for expenses. Appellee told him that delivery should be made at the Swift plant in Denver sometime Monday morning, but did not specify any exact hour of arrival. Neither of the parties knew the location of the plant in Denver. Appellee thought it was in the east part of the city and appellant said he would locate it. The entire subject matter of the engagement was one...