Kohout v. Bennett Constr. , 296 Neb. 608 ( 2017 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    07/28/2017 09:10 AM CDT
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    Nebraska Supreme Court A dvance Sheets
    296 Nebraska R eports
    KOHOUT v. BENNETT CONSTR.
    Cite as 
    296 Neb. 608
    Robert L. Kohout, appellant, v.
    Bennett Construction and
    The Travelers Indemnity
    Company, appellees.
    ___ N.W.2d ___
    Filed May 5, 2017.     No. S-16-609.
    1.	 Workers’ Compensation: Appeal and Error. Pursuant to 
    Neb. Rev. Stat. § 48-185
     (Cum. Supp. 2016), an appellate court may modify,
    reverse, or set aside a Workers’ Compensation Court decision only when
    (1) the compensation court acted without or in excess of its powers; (2)
    the judgment, order, or award was procured by fraud; (3) there is not
    sufficient competent evidence in the record to warrant the making of the
    order, judgment, or award; or (4) the findings of fact by the compensa-
    tion court do not support the order or award.
    2.	____: ____. Determinations by a trial judge of the Workers’
    Compensation Court will not be disturbed on appeal unless they are
    contrary to law or depend on findings of fact which are clearly wrong in
    light of the evidence.
    3.	 ____: ____. An appellate court is obligated in workers’ compensation
    cases to make its own determinations as to questions of law.
    4.	 Workers’ Compensation: Independent Contractor: Insurance. Under
    
    Neb. Rev. Stat. § 48-116
     (Reissue 2010), a contractor’s act of engaging
    a subcontractor without actually compelling the subcontractor to acquire
    workers’ compensation insurance constitutes a device to escape liability
    under the Nebraska Workers’ Compensation Act.
    5.	 Workers’ Compensation: Insurance: Proof. Under 
    Neb. Rev. Stat. § 48-116
     (Reissue 2010), a laborer has the burden to prove, by a pre-
    ponderance of the evidence, that the employer set up a scheme, artifice,
    or device to defeat provisions of the workers’ compensation laws.
    6.	 Workers’ Compensation. Under 
    Neb. Rev. Stat. § 48-116
     (Reissue
    2010), the existence of a scheme, artifice, or device does not require
    active fraud or evil design.
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    KOHOUT v. BENNETT CONSTR.
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    7.	 Principal and Agent. Apparent authority is authority that is conferred
    when the principal affirmatively, intentionally, or by lack of ordinary
    care causes third persons to act upon an actor’s apparent authority.
    8.	 ____. Apparent authority gives a professed agent the power to affect the
    principal’s legal relationships with third parties. The power arises from,
    and is limited to, the principal’s manifestations to those third parties
    about the relationships.
    9.	 Principal and Agent: Liability: Proof. Apparent authority for which a
    principal may be liable exists only when the third party’s belief is trace-
    able to the principal’s manifestation and cannot be established by the
    actor’s acts, declarations, or conduct.
    10.	 Principal and Agent. For apparent authority to exist, the principal
    must act in a way that induces a reasonable third person to believe that
    another person has authority to act for him or her.
    11.	 ____. Whether an actor has apparent authority to bind the principal
    is a factual question determined from all the circumstances of the
    transaction.
    12.	 ____. Indicia of authority expressing association with but not authority
    from a business may contribute to the impression of apparent author-
    ity, but that impression alone cannot bind the agent’s principal to a
    third party.
    13.	 Joint Ventures: Partnerships: Contribution. A joint venture is in the
    nature of a partnership and exists when (1) two or more persons contrib-
    ute cash, labor, or property to a common fund (2) with the intention of
    entering into some business or transaction (3) for the purpose of mak-
    ing a profit to be shared in proportion to the respective contributions
    and (4) each of the parties have an equal voice in the manner of its
    per­formance and control of the agencies used therein, though one may
    entrust per­formance to the other.
    14.	 Joint Ventures: Proof. The moving party bears the burden to prove a
    joint venture or enterprise exists by clear and convincing evidence.
    15.	 Joint Ventures: Intent. The relationship of joint venturers depends
    largely upon the intent of the alleged parties as manifested from the
    facts and circumstances involved in each particular case.
    16.	 Joint Ventures. A joint venture can exist only by voluntary agreement
    of the parties and cannot arise by operation of law. Even a close rela-
    tionship between two parties does not create an implied joint venture.
    17.	 ____. In considering whether a joint venture exists, the acts and
    circumstances between family members may not have the same
    significance as the same acts and circumstances between strangers
    might have.
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    Nebraska Supreme Court A dvance Sheets
    296 Nebraska R eports
    KOHOUT v. BENNETT CONSTR.
    Cite as 
    296 Neb. 608
    Appeal from the Workers’ Compensation Court: James R.
    Coe, Judge. Affirmed.
    Michael W. Khalili and Terry M. Anderson, of Hauptman,
    O’Brien, Wolf & Lathrop, P.C., for appellant.
    Julie A. Jorgensen, of Morrow, Willnauer, Klosterman &
    Church, for appellee.
    Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
    K elch, and Funke, JJ.
    Funke, J.
    NATURE OF CASE
    Robert L. Kohout sustained an injury while performing
    construction work at the residence of Brian Shook. He sued
    Bennett Construction and its workers’ compensation insurer
    for workers’ compensation benefits. The Nebraska Workers’
    Compensation Court ruled that under 
    Neb. Rev. Stat. § 48-116
    (Reissue 2010), Bennett Construction was neither Kohout’s
    direct employer nor his statutory employer, and dismissed the
    complaint. We affirm.
    FACTS
    Background
    Bennett Construction is a sole proprietorship owned and
    operated by Mark Bennett. Mark testified that he typically
    works alone performing carpentry labor but hires subcontrac-
    tors for jobs broader in scope than carpentry. He will also hire
    estimators to bid jobs for him during busy periods.
    Nicholaus Bennett (Nick) is Mark’s son. Nick owns and
    operates the sole proprietorships Nick Bennett Construction
    and Housecraft. He testified that he works as a contractor and
    subcontractor, primarily on roofing and guttering.
    Mark and Nick testified that Nick worked for his father,
    as an estimator, until the work from a hailstorm in 2013 was
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    KOHOUT v. BENNETT CONSTR.
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    completed. Mark stated that he and Nick decided to work inde-
    pendently from that point so that Nick could begin building his
    own clientele. Nevertheless, Mark continued to hire Nick as a
    subcontractor for jobs with metal and gutter work.
    In 2014, there was a severe hailstorm. The day after the
    hailstorm, Shook saw Nick patching a neighbor’s roof and
    asked Nick to patch his roof as well. Shook testified that
    after Nick patched his roof, Nick left him a business card that
    included Nick’s name, a cell phone number, and a “Bennett’s
    Construction & Roofing” logo.
    Shook testified that he later contacted Nick to provide a bid
    for more extensive repairs to his house and barn. Nick pro-
    vided Shook an estimate on a proposal form labeled “Bennett’s
    Construction & Roofing,” with the business number for Bennett
    Construction crossed off and Nick’s name and number written
    on the top. Shook never signed the proposal form, but both he
    and Nick testified that it reflected their verbal agreement. Nick
    subsequently completed the work.
    Nick testified that he retained the Bennett Construction
    business cards and proposal forms from when he previously
    worked for the company. Nick stated that he used the proposal
    forms when he did not have anything else available and that
    when using the forms, he would sometimes explain that he did
    not work for Bennett Construction. Mark testified that he was
    unaware that Nick still used the company’s proposal forms
    and business cards.
    The portion of the proposal form relevant to this dis-
    pute reads: “Our workers are fully covered by Workmen’s
    Compensation Insurance.” Shook testified that he would not
    have hired Nick absent this affirmation. The record reflects that
    neither of Nick’s sole proprietorships had workers’ compensa-
    tion insurance, but that Bennett Construction did.
    Shook testified that Nick never told him he did not work
    for Bennett Construction and that he had never heard the
    name “Housecraft.” But, Shook did testify that an invoice he
    received for work done on the property had “Nick Bennett”
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    KOHOUT v. BENNETT CONSTR.
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    printed on it. Nick testified that his invoices contained a Nick
    Bennett Construction logo.
    Shook paid Nick for the repair work with four checks. The
    first check was written to “Nick Bennett’s Construction” on
    August 21, 2014. The second check, dated September 18,
    2014, was written to “Bennett’s Construction.” Mark testi-
    fied that he cashed the check and wrote a check to Nick for
    the same amount after it cleared. Mark and Nick testified that
    Nick received checks in the name of Bennett Construction
    several times a year and that Mark always cashed them and
    reimbursed Nick to prevent him from having to obtain new
    checks from clients. After this check was received, Nick
    asked Shook to write future checks to “Nick Bennett.” Shook
    wrote the final two checks to “Nick Bennett Construction”
    in 2015.
    Kohout’s Employment
    Kohout was looking for work in 2015 when a friend, who
    was employed by Nick, introduced Kohout to Nick. Nick hired
    Kohout, and Kohout began working at a job in Arlington,
    Nebraska. The Arlington job had been contracted by Mark,
    who hired Nick as a subcontractor.
    Kohout’s next project with Nick was the Shook job. Kohout
    testified that while only Nick regularly appeared and directed
    him at the Shook job, Mark did come to the property once
    during construction. Kohout believed it was to supervise the
    work. However, Mark testified he was there to obtain a tool
    that Nick had borrowed from him and that while he was there,
    he introduced himself to Shook as Nick’s father and talked
    casually about the job with him before leaving. Shook testified
    that he did not know why Mark came to his property.
    Nick testified that Kohout worked directly for him. Nick
    paid Kohout weekly with personal checks signed by him and
    identified as coming from “Housecraft.” Nick supplied Kohout
    with the tools for the job, but Nick frequently borrowed
    Mark’s tools.
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    KOHOUT v. BENNETT CONSTR.
    Cite as 
    296 Neb. 608
    On May 4, 2015, Kohout fell from the roof of the barn
    on Shook’s property. As a result of the fall, Kohout suffered
    an injury.
    Procedural History
    Kohout filed a petition against Bennett Construction and
    its workers’ compensation insurer seeking workers’ compen-
    sation benefits. In their answer, Bennett Construction and
    its insurer raised the affirmative defense that Kohout was
    not employed by Bennett Construction. The parties stipu-
    lated that Kohout’s injury arose out of and in the course of
    employment.
    After a trial, the court dismissed Kohout’s petition. It
    ruled that Kohout was employed by either Nick Bennett
    Construction or Housecraft and that under § 48-116, Bennett
    Construction was neither Kohout’s direct employer nor his
    statutory employer. The court stated that “[i]t is clear from
    [Shook’s] testimony that Nick . . . was solely responsible for
    negotiating the job and performing and supervising the work at
    that site.” Kohout appealed.
    ASSIGNMENT OF ERROR
    Kohout assigns, restated, that the Nebraska Workers’
    Compensation Court erred by finding that Bennett Construction
    was not Kohout’s employer under the Nebraska Workers’
    Compensation Act.
    STANDARD OF REVIEW
    [1] Pursuant to 
    Neb. Rev. Stat. § 48-185
     (Cum. Supp. 2016),
    an appellate court may modify, reverse, or set aside a Workers’
    Compensation Court decision only when (1) the compensa-
    tion court acted without or in excess of its powers; (2) the
    judgment, order, or award was procured by fraud; (3) there is
    not sufficient competent evidence in the record to warrant the
    making of the order, judgment, or award; or (4) the findings
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    of fact by the compensation court do not support the order
    or award.1
    [2,3] Determinations by a trial judge of the Workers’
    Compensation Court will not be disturbed on appeal unless
    they are contrary to law or depend on findings of fact which
    are clearly wrong in light of the evidence.2 An appellate court
    is obligated in workers’ compensation cases to make its own
    determinations as to questions of law.3
    ANALYSIS
    Kohout contends that Bennett Construction is a statutory
    employer pursuant to § 48-116. Section 48-116 states:
    Any person . . . creating or carrying into operation any
    scheme, artifice, or device to enable him or her . . . to
    execute work without being responsible to the workers for
    the provisions of the Nebraska Workers’ Compensation
    Act 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 such act. This section,
    however, shall not be construed as applying to 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 or her contract, if the owner or principal
    contractor, as the case may be, requires the contractor or
    subcontractor, respectively, to procure a policy or poli-
    cies of insurance [that] guarantee[s] payment of compen-
    sation according to the Nebraska Workers’ Compensation
    Act to injured workers.
    [4] Under § 48-116, we have long held that a contractor’s
    act of engaging a subcontractor without actually compelling
    1
    Interiano-Lopez v. Tyson Fresh Meats, 
    294 Neb. 586
    , 
    883 N.W.2d 676
    (2016).
    2
    
    Id.
    3
    See 
    id.
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    the subcontractor to acquire workers’ compensation insurance
    constitutes a device to escape liability under the Nebraska
    Workers’ Compensation Act.4 Neither of Nick’s sole propri-
    etorships had workers’ compensation insurance at the time of
    the Shook job. Accordingly, if Mark’s company was the gen-
    eral contractor of the Shook job and allowed either of Nick’s
    sole proprietorships to act as a subcontractor, the company may
    be liable for Kohout’s injury as a statutory employer.
    [5,6] A laborer has the burden to prove, by a preponderance
    of the evidence, that the employer set up a scheme, artifice, or
    device to defeat provisions of the workers’ compensation laws.5
    The existence of a scheme, artifice, or device does not require
    active fraud or evil design.6
    Kohout asserts two theories under which Mark and Nick
    employed a “scheme, artifice, or device” that allowed Bennett
    Construction to avoid liability under the Nebraska Workers’
    Compensation Act. First, Kohout argues that Nick had the
    apparent authority to enter into a contract with Shook on behalf
    of Bennett Construction and that Nick was hired as an unin-
    sured subcontractor to do the work on the job. Second, Kohout
    contends that Mark and Nick entered into a joint venture to
    obtain repair jobs after the 2014 hailstorm and that the Shook
    job was one of those joint ventures.
    Nick Lacked A pparent Authority
    to Enter I nto Contract With
    Shook on Behalf of
    Bennett Construction
    [7-9] Apparent authority is authority that is conferred when
    the principal affirmatively, intentionally, or by lack of ordinary
    4
    See Rogers v. Hansen, 
    211 Neb. 132
    , 
    317 N.W.2d 905
     (1982), citing
    Hiestand v. Ristau, 
    135 Neb. 881
    , 
    284 N.W. 756
     (1939), and Sherlock
    v. Sherlock, 
    112 Neb. 797
    , 
    201 N.W. 645
     (1924), disapproved on other
    grounds, Franklin v. Pawley, 
    215 Neb. 624
    , 
    340 N.W.2d 156
     (1983).
    5
    O’Brien v. Barnard, 
    145 Neb. 596
    , 
    17 N.W.2d 611
     (1945).
    6
    See Keith v. Wilson, 
    165 Neb. 58
    , 
    84 N.W.2d 192
     (1957).
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    care causes third persons to act upon an actor’s apparent
    authority.7 Apparent authority gives a professed agent the power
    to affect the principal’s legal relationships with third parties.8
    The power arises from, and is limited to, the principal’s mani-
    festations to those third parties about the relationships.9 Stated
    another way, apparent authority for which a principal may be
    liable exists only when the third party’s belief is traceable to
    the principal’s manifestation and cannot be established by the
    actor’s acts, declarations, or conduct.10
    [10,11] For apparent authority to exist, the principal must
    act in a way that induces a reasonable third person to believe
    that another person has authority to act for him or her.11
    Whether an actor has apparent authority to bind the principal
    is a factual question determined from all the circumstances of
    the transaction.12
    Kohout argues that Nick acted with apparent authority
    to bind a contract between Shook and Bennett Construction
    because Nick provided Shook a business card identifying him
    as a representative of the company, Nick used one of the com-
    pany’s proposal forms, the company accepted a check from
    Shook, and Mark visited the Shook worksite on one occasion.
    Additionally, Kohout contends that because Mark took no
    action to disavow Nick as an agent of his company, Mark’s lack
    of ordinary care caused Shook to believe the contract was with
    Mark and/or Bennett Construction. Kohout further contends
    that because Nick was a subcontractor on the Shook job and
    Mark did not compel Nick to obtain workers’ compensation
    7
    RM Campbell Indus. v. Midwest Renewable Energy, 
    294 Neb. 326
    , 
    886 N.W.2d 240
     (2016).
    8
    State ex rel. Medlin v. Little, 
    270 Neb. 414
    , 
    703 N.W.2d 593
     (2005). See,
    also, 1 Restatement (Third) of Agency § 2.03 (2006).
    9
    See RM Campbell Indus., 
    supra note 7
    .
    10
    See 
    id.
    11
    
    Id.
    12
    
    Id.
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    insurance, Bennett Construction employed a device to avoid
    liability under the Nebraska Workers’ Compensation Act and
    that therefore, it was Kohout’s statutory employer.
    Bennett Construction argues that it was not the principal or
    contractor of the Shook job and that Nick was solely respon-
    sible for negotiating, performing, and supervising the job. It
    contends that Mark made no representations to Shook, that
    Nick informed Shook he would be the contractor both orally
    and by altering the proposal, and that Bennett Construction
    retained no benefit from the Shook job.
    The focal points of the analysis are the representations Mark
    and Bennett Construction made to Shook and what Shook
    could have reasonably believed based on those representations.
    Mark and Bennett Construction had only three interactions
    with Shook: First, after a previous hailstorm in 2009 or 2011,
    Mark may have given Shook an estimate for repairs which did
    not result in a contract; second, Bennett Construction cashed
    a check addressed to it by Shook; and third, Mark visited
    the Shook worksite on one occasion. However, Shook’s tes-
    timony did not establish that he intended the check written to
    “Bennett’s Construction” to actually go to Mark’s company, as
    opposed to Nick, and Shook testified that he did not know why
    Mark had visited the worksite.
    [12] Nick’s actions are also relevant to the reasonableness
    of Shook’s belief, but only insofar as they are traceable to
    Mark or Bennett Construction. The business card and proposal
    form presented by Nick were indicia of authority regarding
    Bennett Construction. However, the card contained nothing
    to verify that it was current or more than a declaration made
    solely by Nick, and the proposal form, altered by Nick, also
    provided no verification that Nick was authorized to enter
    into a contract on the company’s behalf. Further, there was
    no evidence that Mark or Bennett Construction were aware
    that Nick had used the business card or the proposal form or
    that Mark or his company gave Nick permission to use either
    document. While such indicia of authority may contribute to
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    the impression of apparent authority, that impression alone
    cannot bind the agent’s principal to a third party.13
    When seeking an estimate for his repairs, Shook contacted
    Nick directly and had no communications through Mark or
    his company. Shook did not testify that Nick stated he was
    employed by Bennett Construction or that Shook’s contract
    would be with Bennett Construction. In fact, Shook testified
    that Nick provided him with an invoice bearing Nick’s name,
    not Bennett Construction, and that Nick asked him to write
    checks to Nick after Shook wrote the one check to “Bennett’s
    Construction.” The fact that Shook addressed his first check
    to “Nick Bennett’s Construction” provides the most tangi-
    ble evidence that he did not believe he had contracted with
    Bennett Construction.
    Based on the preceding facts, Shook could not have reason-
    ably believed that he was contracting with Mark or Bennett
    Construction. Shook’s testimony does not show that Mark or
    his company manifested any authority to him. The indicia of
    authority alone—the business card and the proposal form—
    does not provide a reasonable basis to conclude the contract
    was with Bennett Construction. Finally, Shook’s actions show
    that he did not actually believe he had contracted with some-
    one other than Nick. Therefore, we find that Nick lacked the
    apparent authority to bind Bennett Construction to the contract
    with Shook and that as a result, Shook entered the contract
    with Nick alone.
    Nick Did Not Enter Into
    Joint Venture With M ark
    or Bennett Construction
    [13,14] A joint venture is in the nature of a partnership and
    exists when (1) two or more persons contribute cash, labor, or
    property to a common fund (2) with the intention of entering
    into some business or transaction (3) for the purpose of making
    13
    Herbert Const. Co. v. Continental Ins. Co., 
    931 F.2d 989
     (2d Cir. 1991).
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    a profit to be shared in proportion to the respective contribu-
    tions and (4) each of the parties have an equal voice in the
    manner of its performance and control of the agencies used
    therein, though one may entrust performance to the other.14
    The moving party bears the burden to prove a joint venture or
    enterprise exists by clear and convincing evidence.15
    [15-17] The relationship of joint venturers depends largely
    upon the intent of the alleged parties as manifested from the
    facts and circumstances involved in each particular case.16 A
    joint venture can exist only by voluntary agreement of the
    parties and cannot arise by operation of law. Even a close rela-
    tionship between two parties does not create an implied joint
    venture.17 In considering whether a joint venture exists, the acts
    and circumstances between family members may not have the
    same significance as the same acts and circumstances between
    strangers might have.18
    Kohout also argues that Mark and Nick employed a joint
    venture as a scheme to avoid liability under the Nebraska
    Workers’ Compensation Act, citing Thomas v. Hansen.19 He
    contends that Mark and Nick had a common purpose of secur-
    ing as much work from the hailstorm for their family as pos-
    sible and that Mark allowed Nick to use his proposal forms to
    induce business based on the statement about workers’ com-
    pensation coverage.
    In Thomas, the Iowa Supreme Court held that Hansen &
    Sons Welding (Hansen) and Leo Morgan were engaged in a
    joint venture when Morgan’s employee, Edward Thomas, was
    injured. Hansen had agreed to bill a packing plant with which
    14
    See Lackman v. Rousselle, 
    257 Neb. 87
    , 
    596 N.W.2d 15
     (1999).
    15
    See 
    id.
    16
    
    Id.
    17
    
    Id.
    18
    
    Id.
    19
    Thomas v. Hansen, 
    524 N.W.2d 145
     (Iowa 1994).
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    Hansen had a contract on Morgan’s behalf for 8 percent of
    Morgan’s portion of the contract, because Morgan did not have
    workers’ compensation insurance and the packing plant would
    not contract with uninsured contractors. The court identified
    that Hansen paid Thomas and that Hansen and Morgan often
    exchanged workers and exercised mutual control over them.
    The court found that the facts showed the only reason for the
    arrangement was to avoid workers’ compensation laws. The
    court stated that although there was conflicting evidence of
    whether a joint venture existed, based on the strong evidence
    of the parties’ intent, a joint venture did exist, and that Hansen
    was liable for Thomas’ injuries.20
    In O’Brien v. Barnard,21 we considered whether a lease
    arrangement constituted a “scheme, artifice, or device” under
    § 48-116. Raymond Barnard operated a gas station, which
    he leased from Charles Larsen. At the inception of the lease,
    Larsen provided Barnard a $1,000 loan, which Barnard agreed
    to repay at the rate of one-half cent per gallon of gas purchased
    until paid in full, plus interest. He also paid Larsen 1 cent per
    gallon of gas purchased for rent. Barnard purchased all of his
    gas and products through Larsen, who was a sales representa-
    tive for a petroleum company.
    The plaintiff in O’Brien, who was an employee at the gas
    station, claimed that Larsen was a statutory employer, because
    he set up the business through Barnard to increase his own
    income, essentially claiming that a joint venture existed. We
    held that Larsen was not a statutory employer.22 In doing so,
    we noted that (1) Larsen did not contribute financially to the
    station because his $1,000 loan was being repaid by Barnard;
    (2) Larsen did not control, supervise, or give direction on the
    station’s management or to Barnard’s employees; (3) Larsen
    20
    Id.
    21
    O’Brien v. Barnard, supra note 5.
    22
    Id.
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    did not share in the profits of the station; and (4) there was no
    evidence that Larsen and Barnard intended to enter into busi-
    ness together.23 While we determined that the facts of the case
    did not warrant liability for the alleged joint venture, we did
    not foreclose applicability of the concept.
    Here, Kohout has failed to show by clear and convincing
    evidence that Nick engaged in a joint venture with Mark or
    Bennett Construction on the Shook job.
    First, because a joint venture cannot arise as an operation
    of law, there must be evidence that Mark and Nick intended
    to enter into a voluntary agreement. In Thomas, the circum-
    stances implied that Hansen and Morgan made an agreement
    to avoid the packing plant’s prohibition on contracting with
    uninsured contractors, because there was no other reason-
    able explanation for their arrangement and there was also
    direct evidence that they had agreed to the joint venture.24
    In O’Brien, Larsen’s arrangement with Barnard was bene­
    ficial to Larsen individually and as a sales representative,
    but we did not infer from this that Larsen and Barnard were
    joint venturers.25
    Kohout failed to elicit evidence that Mark and Nick had
    the intent to enter into a joint venture to complete the Shook
    job. Mark and Nick both testified that Nick was operating his
    own business after the hailstorm. Though Kohout argues that
    Nick testified that he occasionally worked on jobs with Mark
    and split the profits, there is no evidence regarding those jobs
    or that this was the situation on the Shook job. While Nick
    continued to be a subcontractor for Mark on other jobs, there
    is no evidence that Nick benefited more than any other sub-
    contractor would have or that his subcontracting constituted a
    joint venture.
    23
    
    Id.
    24
    See Thomas v. Hansen, supra note 19.
    25
    See O’Brien v. Barnard, supra note 5.
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    Nebraska Supreme Court A dvance Sheets
    296 Nebraska R eports
    KOHOUT v. BENNETT CONSTR.
    Cite as 
    296 Neb. 608
    While Nick testified that he intended people to rely on the
    statement concerning workers’ compensation insurance in the
    proposal form, there was no evidence that Mark or Bennett
    Construction was complicit or even aware of Nick’s actions.
    In addition, there is neither circumstantial evidence that
    Mark would have entered into a joint venture with Nick’s sole
    proprietorships nor direct evidence that he did, as was the case
    in Thomas. Further, there is no evidence as to how such an
    arrangement would have benefited Bennett Construction, as
    was the case in O’Brien. Accordingly, we cannot infer a volun-
    tary agreement or an intent by Mark and Nick to enter a joint
    venture on the Shook job.
    Second, there is no evidence that Mark contributed cash or
    labor to the Shook job. While Kohout established that Nick,
    at times, used some of Mark’s tools, he did not show that this
    provided a significant contribution to the Shook job. Further,
    we recognize our statement in Lackman v. Rousselle 26 that
    circumstances between family members are not the same as
    strangers; a father allowing his son to use tools is an incident
    of their closeness and does not alone imply a joint venture.
    Third, there is no evidence that Mark and Nick split the
    profits from the Shook job. In fact, there is no evidence that
    Mark profited from the Shook job at all. While Mark did cash
    the check Shook wrote to “Bennett’s Construction,” he testi-
    fied that he provided Nick with a check for the full amount
    shortly thereafter.
    Fourth, there is no evidence that Mark had an equal right to
    control the performance at the Shook worksite. Though Mark
    visited the site on one occasion, neither Kohout nor Shook
    testified that Mark directed any actions at the site or examined
    the work. While Mark could have entrusted performance of the
    Shook job to Nick under a joint venture, Kohout failed to show
    any evidence that would warrant such a determination.
    26
    Lackman v. Rousselle, 
    supra note 14
    .
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    Nebraska Supreme Court A dvance Sheets
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    KOHOUT v. BENNETT CONSTR.
    Cite as 
    296 Neb. 608
    Accordingly, we hold that neither Mark nor Bennett
    Construction was engaged in a joint venture with Nick con-
    cerning the Shook job.
    CONCLUSION
    We find that the Nebraska Workers’ Compensation Court’s
    application of § 48-116 was not contrary to law and that its
    determination that Bennett Construction was not Kohout’s
    statutory employer was not clearly wrong in light of the evi-
    dence. Therefore, for the reasons stated above, we affirm the
    judgment of the court.
    A ffirmed.