Carr v. Krekeler

• Decision Date: 24 June 1932
• Docket Number: 14,591
• Parties: CARR ET AL. v. KREKELER, GUARDIAN, ET AL
• Court: Indiana Appellate Court

181 N.E. 526

94 Ind.App. 508

CARR ET AL. v. KREKELER, GUARDIAN, ET AL

No. 14,591

Court of Appeals of Indiana

June 24, 1932

From Industrial Board of Indiana.

Proceeding under the Workmen's Compensation Act by Clara A. Krekeler and others for the death of Anthony J. Krekeler against Robert F. Carr and Clyde E. Puttmann, doing business under the firm name of "Carr and Puttmann," employers. From an award of compensation in favor of some of the claimants, the defendants appealed.

Affirmed.

Burke G. Slaymaker, Clarence F. Merrell, Theodore L. Locke and James V. Donadio, for appellants.

John E Osborn, for appellees.

OPINION

CURTIS, J.

This is an appeal from an award of the full Industrial Board of Indiana entered on January 11, 1932, in a proceeding brought by the appellees under the provisions of the Indiana Workmen's Compensation Act (Acts 1929 p. 536), in which the appellees made a claim for compensation against the appellants on account of fatal injuries received by Anthony J. Krekeler on or about June 2, 1930.

The appellees filed their application in the usual form before the board alleging that on June 2, 1930, Anthony J. Krekeler died as a result of personal injuries received by him on said date by reason of an accident arising out of and in the course of his employment by the appellants while he was driving and operating a motor truck in hauling crushed stone used in the construction of a public highway by the appellants. At the hearing before the board the appellants defended upon the theory that said Anthony J Krekeler was not an employee at the time he received the injuries from which he died, but was an independent contractor and as such not entitled to the protection of the Workmen's Compensation Act. The single member, upon the hearing, entered an award in favor of the appellees. An application was then filed by the appellants for a review by the full board. The full board, upon the hearing, entered an award in favor of the appellees. Among other things the full board found: "That on June 2nd, 1930, one Anthony Krekeler was in the employ of Robert F. Carr and Clyde E. Puttmann, doing business as a partnership under the firm name of Carr and Puttmann, at an average weekly wage of $ 21.00, as a truck driver, and on said date the said Anthony Krekeler received a personal injury by reason of an accident arising out of and in the course of his said employment; that as the result of said accidental injury the said employee died on June 2nd, 1930.

"The Board further finds that said deceased left as his only dependents, his wife Clara Krekeler, his sons Bernard Krekeler aged seventeen years, Charles Krekeler aged fifteen, and Stanley Krekeler aged eleven years; all of whom were living with the deceased at the time of his death and wholly dependent on him for support.

"The Board finds that the said dependent Charles Krekeler died on September 9th, 1930; that the plaintiffs Madaline Krekeler and Alvina Krekeler, who are the children of the said Anthony Krekeler, were each more than eighteen years of age at the time of his death and were not his dependents, and are not entitled to an award of compensation."

The award was in accordance with the finding as to the dependents and was for a period of 300 weeks, at the rate of $ 11.55 per week to be distributed and redistributed as provided in the award. In addition, the appellants were ordered to pay the necessary and reasonable medical, surgical and hospital expenses of the said Anthony Krekeler, deceased, for the first 30 days following his said accident and injury, together with the costs of the proceedings and an additional $ 100 for burial expenses. Madeline Krekeler and Alvina Krekeler were each denied compensation. The attorneys fees were also fixed in the award.

The appellants duly excepted to the award and prayed and perfected this appeal. The error assigned and relied upon for reversal is that the award of the full Industrial Board is contrary to law.

The question for determination is whether or not there is any competent evidence or legitimate inferences to be drawn therefrom to sustain the finding of the full board that the deceased was an employee of the...