Columbia Sch. Supply Co. v. Lewis

• Decision Date: 21 December 1917
• Citation: 115 N.E. 103,63 Ind.App. 386
• Parties: COLUMBIA SCHOOL SUPPLY CO. v. LEWIS.
• Court: Indiana Appellate Court

63 Ind.App. 386

115 N.E. 103

COLUMBIA SCHOOL SUPPLY CO.

v.LEWIS.

Appellate Court of Indiana, Division No. 2.

Dec. 21, 1917.

Appeal from Industrial Board.

Proceedings under the Workmen's Compensation Act by Charles Lewis, the employé, against the Columbia School Supply Company, the employer. From an award of compensation, the employer appeals, and the employé moves to dismiss. Motion to dismiss overruled.McKay, Turner & Merrell, of Indianapolis, for appellant. Willard Robertson, of Indianapolis, for appellee.

CALDWELL, J.

Appellee, while hauling goods for appellant, suffered certain physical injuries. His cause having been regularly brought before the Industrial Board, under the provisions of the act of 1915 (Acts 1915, p. 392), a hearing before a member of the board resulted in a finding and award in appellee's favor. The cause having been reviewed by the full board on application to that end, there was a like finding and award, from which award this appeal is prosecuted. Appellee has filed a motion to dismiss the appeal, on the ground that appellant presents for our consideration no error of law.

Section 61 of the act provides, in substance, that an award, if not reviewed in due time or an award of the board upon such review shall be conclusive and binding as to all questions of fact, “but either party to the dispute may within 30 days from the date of the award appeal to the Appellate Court for errors of law under the same terms and conditions as govern appeals in ordinary civil actions.” The finding is in part that appellee “was in the employment” of appellant, and that he “received a personal injury by an accident arising out of and in the course of his employment.” On the finding appellee was awarded a certain weekly compensation for 100 weeks.

Appellant's assignment of error in this court is in part to the effect that there was no evidence tending to show that the relation of employer and employé existed between appellant and appellee, but that the evidence affirmatively established that such relation was that of contractee and independent contractor, and that there was no evidence from which it might be determined that appellee received his injuries by accident arising out of and in the course of his employment.

An inspection of the act discloses that it deals with employers and employés. By section 76 an “employer” is defined as including “any individual firm, etc., using the service of another for pay;” and an “employé” is defined as including “every person *** in the service of another under any contract of hire or apprenticeship written or implied,” except casual laborers, etc. The same section of the act limits the injuries for which there may be an award under the act to injuries “by accident arising out of and in the course of the employment.”

[1] It seems to be conceded by appellee's counsel that, if appellee were in fact an independent contractor, rather than an employé, he is not included within the protection of the act. Such seems to be the effect of the definition of an employé as contained in the act, and as above set out. The courts so hold under similar acts. See cases collected in note to Kill v. Industrial Commission, L. R. A. 1916A, pages 118 and 247; also Powley v. Vivian Co., 169 App. Div. 170, 154 N. Y. Supp. 426;Rheinwald v. Builders', etc., Co., 168 App. Div. 425, 153 N. Y. Supp. 598. Appellee contends, however, that as to whether he was an independent contractor rather than an employé within the meaning of the act was a question of fact for the Industrial Board, and that the board determined that he was an employé by finding that he was “in the employment” of appellant. Appellant, however, contends that the question of what constitutes an independent contractor is a question of law, and not a question of fact.

[2] It may be said, however, that such question is ordinarily one of mixed law and fact. Where the evidence with respect to the relation under investigation is oral, as here, and is sufficient to establish the existence of some relation, and if it be uncontradicted and reasonably susceptible of but a single inference, the question of what relation is thereby shown to...