Domer v. Castator

• Decision Date: 20 March 1925
• Docket Number: 12,178
• Citation: 146 N.E. 881,82 Ind.App. 574
• Parties: DOMER v. CASTATOR
• Court: Indiana Appellate Court

146 N.E. 881

82 Ind.App. 574

DOMER v. CASTATOR

No. 12,178

Court of Appeals of Indiana

March 20, 1925

From Industrial Board of Indiana.

Application for compensation under the Workmen's Compensation Act by Monroe Castator against George A. Domer. From an award for claimant, the defendant appeals.

Affirmed.

Fred H Bowers, Milo N. Feightner and Lee M. Bowers, for appellant.

Whiteleather & Bloom, for appellee.

OPINION

NICHOLS, J.

Appellee filed his application with the Industrial Board against appellant for compensation for personal injuries which he received while performing work for appellant. It appears by the evidence that appellant purchased a certain house in the town of South Whitley which he desired to repair, with the purpose of thereafter disposing of the same and building upon an adjoining lot which was owned by him. Appellee was a carpenter, and for a number of years prior thereto, had been engaged in that business, sometimes as a contractor and sometimes as an employee. At the time here involved, appellant called appellee over the telephone and asked him to do some carpenter work on the house above mentioned. Subsequently, they met at the house that was to be repaired and, after showing appellee through the house and pointing out the changes that he desired made therein, it was agreed between the parties that appellee should go forward with the work, joining with appellant in employing the necessary workmen therefor, keep the time of the workmen and report the same to appellant who was to pay therefor, and appellant agreed to pay appellee for his services fifty cents an hour. As a matter of accommodation to some of the laborers, appellee paid them their wages, but was reimbursed by appellant for the amount so paid. Appellee received no profit by reason of the employment of other carpenters, or no part of their wages, his sole compensation being fifty cents an hour for his labor and for overseeing the work. Appellant furnished all of the material used in the repair. From time to time as the work progressed, appellant directed appellee as to what work he desired done. On these facts appellant presents two questions: (1) Was the appellee an employee of appellant, or was he an independent contractor? (2) Was the so-called employment of appellee both casual and not in the usual course of business or occupation of appellant?

In the case of Indiana Iron Co. v Cray (1897), 19 Ind.App. 565, 577, 48 N.E. 803, it was held that: "An independent contractor is not, in any proper legal sense, a servant of his employer, but is one exercising an independent employment under a contract to do certain work by his own methods, without subjection to the control of his employer except as to the product or result of the work. Various peculiarities of the employment have been regarded as important or controlling in particular cases. It has been said that the test is, who has the general control of the work? Who has the right to direct what shall be done and how to do it?" The same authority on the following page states that: "It has been questioned whether there is any legal test by which in all cases it can be determined whether an employee is a servant." Generally speaking, the question as to whether one is an employee or an independent contractor is a question of fact, and a finding by the board, one way or the other, when sustained by competent evidence, is final. McDowell v. Duer (1922), 78 Ind.App. 440, 445, 133 N.E. 839; Indiana Workmen's Compensation Manual, 209.

The manual cites numerous authorities to sustain this rule, and on the same page, states the further rule to be that because of the rule of liberal construction of the compensation act, when, upon the facts, a doubt exists as to whether a workman is an employee or an independent contractor, the doubt is to be resolved in favor of the former status. Authorities are also cited to sustain the last rule. In determining whether appellee was an independent contractor or an employee, the Industrial Board had a right to consider, and no doubt considered, that appellee was not in full control of the work to be done and responsible only for results, as was evidenced by the fact that full and final directions as to the character and extent of the repairs were not given to him by appellant in the beginning and that, from time to time thereafter, changes were made, and additional instructions as to the work given by appellant; that appellee was not paid a lump sum for his services, but for his labor and services as foreman he was to receive fifty cents an hour; that he had no profit in the work other than his wages, and was not liable to any loss; that while he employed a part...