Williams v. City of Wymore, Gage County

• Decision Date: 14 June 1940
• Docket Number: 30924.
• Citation: 292 N.W. 726,138 Neb. 256
• Parties: WILLIAMS v. CITY OF WYMORE, GAGE COUNTY.
• Court: Nebraska Supreme Court

292 N.W. 726

138 Neb. 256

WILLIAMS v. CITY OF WYMORE, GAGE COUNTY.

No. 30924.

Supreme Court of Nebraska.

June 14, 1940

Syllabus by the Court.

When a city, pursuant to agreement, furnished certain equipment material, supplies, superintendence and other items for use on a Works Progress Administration project, but had no authority to control the details of the work or to direct the mode and manner of doing it, the city is not liable for the payment of benefits under the workmen's compensation law for injuries suffered by an employee on the project.

Appeal from District Court, Gage County; Ellis, Judge.

Suit by George Everett Williams against the City of Wymore, Gage County, Neb., to recover benefits under the Workmen's Compensation Law, Comp.St.1929, § 48-101 et seq., for injuries sustained while in the alleged employ of defendant city. From a judgment denying an award, plaintiff appeals.

Affirmed.

Hubka & Hubka, of Beatrice, for appellant.

P. M Everson, of Wymore, and Vasey & Mattoon, of Beatrice, for appellee.

Harold C. Linahan, W. W. Wenstrand, Edward Sklenicka, and Alfred A. Raneri, all of Omaha, amici curiae .

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.

CARTER, Justice.

This is a suit in which George E. Williams seeks to recover benefits under the workmen's compensation law, Comp.St. 1929, § 48-101 et seq., for injuries sustained while in the alleged employ of the city of Wymore. The trial court denied an award, and plaintiff appeals.

It appears from the record that on April 4, 1938, plaintiff was engaged as a common laborer in breaking ledge rock with a sledge hammer and thereafter lifting and placing it in a pile. While so engaged, plaintiff stepped on a small rock which turned and caused him to injure his back. The primary question for determination is whether plaintiff was an employee of the city.

The record shows that a proposal of the city for the construction of improvements on certain of its streets had been accepted by the Works Progress Administration of the federal government, and on the date of plaintiff's injury the improvements were being made. The city had agreed to furnish for such construction work certain equipment, material, supplies and other items, including superintendence, in an amount totaling $4,962, of which $1,100 was for superintendence. The Works Progress Administration furnished superintendence, material, equipment, supplies, all labor and other items totaling $17,037 of which $1,267 was for superintendence.

At the time of his injury, plaintiff was working in a rock quarry a mile and a half east of Wymore. The quarry was leased by the city. The outbuildings and equipment, including the rock crusher, tools, trucks and wagons, belonged to the city, and were being used in connection with the project. The evidence is clear that the project was directed by the Works Progress Administration and not by the city. The record further discloses that the Works Progress Administration employed the plaintiff, and that he was what is generally called a W. P. A. worker. He was under the direction and control of the Works Progress Administration, which fixed his hours of employment, his wages and labor classification, and had the sole right to supervise his work and to discharge him if necessary. In this connection it is pointed out that the plaintiff never applied to any officer of the city for employment; that he had previously been and had continued to work as a W. P. A. worker; that he was selected through regularly established W. P. A. channels; and that the city did not pay or agree to pay the plaintiff. We think the evidence is clear that the city had no control or supervision over the plaintiff on this project, and that the right to direct the manner in which the work was to be done, as well as the result to be accomplished, was in the Works Progress Administration. This is the primary test in determining whether the relation of master and servant existed. Curry v. Bruns, 136 Neb. 74, 285 N.W. 88; Home Savings & Loan Ass'n v. Carrico, 123 Neb. 25, 241 N.W. 763.

Plaintiff urges that the fact that the city was to provide a part of the superintendence is evidence that it had the right of control. It is true that among the items of estimated cost of execution of the project assigned as part of the city's contribution was the item of superintendence. This was, in a sense, a contribution in kind for which the city was to be given credit on its contribution to the cost. It is not even intimated that the city was to control the manner of doing the work because of this provision. It may be noted that the Works Progress Administration was also to furnish superintendence; in fact the greater part of the cost of superintendence was to be furnished by it. The proposal, so far as costs are concerned, appears to be nothing more or less than an analysis of estimated costs of the whole project, showing the items or parts of items that the city would contribute to make up the total contribution required of it. The ultimate and actual agreement made by the city was not to execute the work but, as shown in the project proposal, to " finance such part of the entire cost thereof as is not to be supplied from federal funds."

Plaintiff contends that the fact that Clem Hudson, the city's street commissioner, was employed as a superintendent of the project, evidences that the city was the employer of the plaintiff. It...