In re W.A. Montgomery & Son
| Decision Date | 07 February 1930 |
| Docket Number | No. 13979.,13979. |
| Citation | 169 N.E. 879,91 Ind.App. 21 |
| Court | Indiana Appellate Court |
| Parties | In re W. A. MONTGOMERY & SON. |
OPINION TEXT STARTS HERE
Proceedings under the Workmen's Compensation Act by dependents of Wilbur A. Montgomery contested by W. A. Montgomery & Son, a partnership. On certified questions. Questions answered in negative.
Under the provisions of section 61 of the Workmen's Compensation Act of 1929 (Acts 1929, p. 559, c. 172), the Industrial Board of Indiana has certified to this court questions of law based upon the following statement of facts presented in a proceedingnow pending before such board and requests the opinion of the court for guidance in determining such proceedings:
On March 29, 1929, and prior thereto, Wilbur A. Montgomery and his son Floyd C. Montgomery were operating as partners in the firm name of W. A. Montgomery & Son, and were engaged in the general garage business, in which, with other activities, they conducted a general repair business and repair shop; that both gave their full time thereto; that said Wilbur had charge as foreman of the repair shop and directed the work of employees of such partnership in the general repair business; that it was his duty to respond to calls that came to them for the purpose of pulling in wrecked or stranded automobiles on the highways in and near Scottsburg, using therefor a wrecking car; that on March 29, 1929, said partnership received a call to a wrecked automobile, and in responding thereto, Wilbur accompanied by an employee of said partnership, took the wrecking car and went to the point where said automobile was wrecked, upon the highway, and while in the act of removing it therefrom, he was struck by an automobile and injured and soon thereafter died; that in the conduct of said business they had in their employ, at the time of such accidental injury and death, three employees other than themselves; that it was their custom to pay each member $25 at the end of each week out of their account and to charge the same to the overhead running expenses of the partnership business, and this was all the money received by either of them, except that each participated equally in the division of the profits, if any, of the business, which profits, if any, were left in the business to increase their stock.
Questions of law presented are: (1) Was Wilbur A. Montgomery an employee of the partnership, operating under the name of W. A. Montgomery & Son, within the meaning of the Workmen's Compensation Act in force at the time of the injury, and are his...
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