Crawfordsville Shale Brick Co. v. Starbuck

• Decision Date: 04 October 1923
• Docket Number: No. 11696.,11696.
• Citation: 141 N.E. 7,80 Ind.App. 649
• Parties: CRAWFORDSVILLE SHALE BRICK CO. v. STARBUCK et al.
• Court: Indiana Appellate Court

80 Ind.App. 649

141 N.E. 7

CRAWFORDSVILLE SHALE BRICK CO.

v.STARBUCK et al.

No. 11696.^*

Appellate Court of Indiana, Division No. 2.

Oct. 4, 1923.

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by Mary O. Starbuck and another to recover compensation for the death of John M. Starbuck, employee, opposed by the Crawfordsville Shale Brick Company, employer. From an award of compensation, the employer appeals. Affirmed.

Joseph W. Hutchinson, of Indianapolis, for appellant.

Frank B. Ross, Rochford, Wall & Rochford, and James D. Ermston, all of Indianapolis, for appellees.

McMAHAN, C. J.

The Manufacturers' Equipment Company of Dayton, Ohio, entered into a written agreement whereby it agreed to furnish certain materials, detailed plans, and the necessary engineering service for the installation of a gas-burning system for appellant's plant at Crawfordsville. Said agreement, in addition to the provision that the equipment company was to furnish “the necessary engineering service,” provided as follows:

“It is understood and agreed that we (the equipment company) are to furnish the services of an experienced man during the necessary period of time to supervise construction and installation, *** and for such services you are to pay transportation expenses, board, lodging, and a salary of ten dollars per day from the time of leaving Dayton, Ohio, until his return to that point, and while so engaged in the work.”

Appellant was also to furnish sufficient and competent help in the prosecution of the work of installing such plant. The equipment company made arrangements with John M. Starbuck, an experienced engineer of Indianapolis, to supervise the installation of said plant. During the installation of said system by appellant, and while he was supervising such installation, Starbuck was killed by being struck by a motorcar owned and operated by the Standard Brick Company. Starbuck had supervised the installation of a number of plants where the materials and machinery had been sold by the equipment company. Appellant paid Starbuck $10 a day for supervising the work. There is no evidence that he had ever been an employee of the equipment company, or had ever been paid anything by that company for any work performed in the installation of any plant.

The Industrial Board found that Starbuck was an employee of appellant, and that he was killed by reason of an injury received by him in the course of and arising out of his employment, and awarded appellees compensation as dependents. From this award, appellant appeals, and insists that Starbuck was not an employee of appellant. Appellant proceeds upon the theory and assumption that Starbuck was an employee of the equipment company, that the price for his services was fixed in a contract between appellant and the equipment company, and that there was never any contract express or implied between appellant and Starbuck.

Dallas Mfg. Co. v. Townes, 148 Ala. 146, 41 South. 988, cited by appellant, was a common-law action by appellee to recover damages for an injury received by appellee as an employee of appellant. A third party had entered into a contract with appellant to furnish the men to install and start the machinery,and was engaged in that work when appellant employed appellee as a helper to aid the contractor in installing such machinery. The manufacturing company paid Townes for his work and charged the same against the company selling and installing the machinery. Townes was not a regular employee of the appellant, and was working under an independent contractor, and was not in any way subject to the orders or direction of the appellant. In holding that Townes was not an employee of the appellant the court said:

“Where certain work is let to an independent contractor, who works according to his own methods and not under the direction of the master, those who work under said independent contractor are his servants, and not the servants or employees of the master. And this principle applies even to one who is the general servant of the master, but for that particular work becomes the servant of the contractor.”

In Claremont Country Club v. Industrial Accident Commission, 174 Cal. 395, 163 Pac. 209, L. R. A. 1918F, 177, a boy, while caddying for a member of the club, received an injury for which compensation was awarded against the club. The facts in that case showed that the club provided caddies for club members desiring them. The club maintained a caddy house, where the caddies were stationed until their services were needed. These caddies were under the control of a paid employee of the club, known as the “caddy master.” When a club member desired the services of a caddy, he was not permitted to select the caddy he desired. He made his application to the caddy master, who under system summoned the caddy whose turn it was to serve. The caddies were paid by the game. The player at the end of the game reported to the caddy master, with remarks concerning the services and qualifications of the caddy, and at the same time handing to the caddy master the amount earned by the caddy, which amount was immediately handed to the caddy by the caddy master. Caddies were taken on by the club through a committee or the caddy master, who was also empowered to discharge the caddy or to forbid him from frequenting the golf links. The club, on an appeal from the award, contended that the caddy, when injured, was an employee of the club member, and not of the club. The court held otherwise. The bare statement of the facts is sufficient to show that the above case is not of controlling influence in the instant case.

Wolfe v. Mosler Safe Co., 139 App. Div. 848, 124 N. Y. Supp. 541, was an action for personal injuries, where Wolfe, an employee of a bank, had with its consent been...