Coppes Bros. & Zook v. Pontius

• Decision Date: 29 June 1921
• Docket Number: No. 11043.,11043.
• Citation: 76 Ind.App. 298,131 N.E. 845
• Court: Indiana Appellate Court
• Parties: COPPES BROS. & ZOOK v. PONTIUS.

76 Ind.App. 298

131 N.E. 845

COPPES BROS. & ZOOK

v.PONTIUS.

No. 11043.

Appellate Court of Indiana, Division No. 2.

June 29, 1921.

Appeal from Industrial Board.

Proceeding by Ambrose Pontius under the Workmen's Compensation Act to obtain compensation for personal injuries, opposed by Coppes Bros. & Zook, the employer. An award of compensation, and the employer appeals. Award affirmed.

Frederick K. Warne and Joseph W. Hutchinson, both of Indianapolis, for appellant.

Albert B. Chipman, of Akron, for appellee.

DAUSMAN, J.

The Industrial Board awarded compensation to the appellee on the ground that he received an injury by accident while in the service of appellant as an employé. Appellant contends that the award “is contrary to law for the reason that under the undisputed evidence *** the relation existing between the parties at the time of the injury was not that of employer and employé, but, on the other hand, the appellee was an independent contractor.” That contention presents the only question for our determination.

[1] One of the facts which the Board is required to find in every case where compensation is awarded is that the relation of employer and employé existed. If that fact be not found, the finding will not sustain the award. Muncie, etc., Co. v. Thompson, 123 N. E. 196.

The evidence discloses the following facts: The firm of Coppes Bros. & Zook is engaged in the manufacturing business, and also operates a sawmill, at Napanee. George F. Brown has been employed by the firm for at least 15 years. His duty is to buy timber, to see that it is cut, and that the logs are hauled and transported to the mill fast enough to keep the mill constantly running. Acting for the firm Brown purchased a tract of timber near Akron, Ind. Having learned through one Dilsaver that this tract was for sale, Brown felt kindly toward him and gave him the privilege of hauling the logs and loading them on cars at Akron. He regarded it as a favor to Dilsaver to give him and his boys work throughout the winter. But, if Dilsaver did not move the logs as rapidly as they were needed, the firm had the right to put more men at the work. On one occasion when Brown was at Akron he told Dilsaver that the firm needed the logs, that they were not coming in fast enough, and that Pontius wanted to haul. Mr. Pontius has a small farm which he cultivates, but when he has spare time he does hauling. Brown called on Pontius and said to him: “I have some timber up here. Would you go up and help Dilsaver haul?” Pontius answered: “I will start in and help as soon as I get my own work done and get straightened up.” A week later Dilsaver asked Pontius: “When are you going to commence hauling?” Pontius answered: “I can commence next week.” Dilsaver replied: “All right. Come on and let's get the logs in.” A Mr. Hinsey was “hired” by Brown in the same way. It is a part of Brown's duty “to go out and hire men to haul and load logs.” The three men, each furnishing his own team and wagon, hauled logs, and aided each other in loading the cars. Coppes Bros. & Zook paid them at the rate of $7 per M. An itemized statement of each man's account was made out by the firm, and remittances for amounts earned were made usually each week, but sometimes two weeks were included in a remittance. The firm gave no directions as to the manner of doing the work, but left the men free to do the...