McDowell v. Duer

• Decision Date: 26 January 1922
• Docket Number: No. 11140.,11140.
• Citation: 133 N.E. 839,78 Ind.App. 440
• Parties: McDOWELL et al. v. DUER.
• Court: Indiana Appellate Court

78 Ind.App. 440

133 N.E. 839

McDOWELL et al.

v.DUER.

No. 11140.^*

Appellate Court of Indiana.

Jan. 26, 1922.

Appeal from Industrial Board.

Proceeding by Almeda Duer under the Workmen's Compensation Act to obtain compensation for the death of her husband, Charles Duer, opposed by Frank McDowell and others, doing business in the firm name of the Bluffton Hoop Company, the employer, and the insurance carrier. There was an award of compensation and the employer and insurance carrier appeal. Affirmed.

Everett W. Trook and Joseph W. Hutchinson, both of Indianapolis, for appellants.

Dore B. Erwin, of Decatur, for appellee.

DAUSMAN, C. J.

The appellants are partners doing business in the firm name of Bluffton Hoop Company. One Charles Duer, while cutting timber for appellants, was injured by a falling tree, and died from the effects thereof a few days later, and this appeal is from an award of compensation to the appellee as his widow. The undisputed facts bearing on the controversy are as follows:

The hoop company had a manufacturing plant at Decatur, Ind. It had in its employ one Franks, whose business was to buy timber for the company and to employ men to cut and haul it. In February, 1920, Franks purchased some timber for the company in the community where Duer resided. Franks asked Duer if he could cut the timber, and Duer said he could. They agreed on the price to be paid for the cutting, viz. $2.50 per thousand. The quantity of timber was about 10,000 feet. Franks gave Duer specifications, measurements, and dimensions, and told him the length in which he wanted the timber cut. Duer's regular business was farming and also contracting for the construction of ditches and cement work. Duer furnished his own tools for cutting timber, and he engaged his son to help him do that work. Franks had control over the work, as to how the timber should be cut, and authority to see that it was cut according to specifications.

The company reported the accident to the Industrial Board before Duer died, and also made a report to the insurance carrier. The company, in its report to the Industrial Board, consistently and throughout the document referred to Duer as its employé. The company bought timber at various places. It usually had two regular cutters at each place. The company's plan was to have a regular set of cutters; but sometimes it would cut timber in localities where it was hard for its men to go, and in such cases, or in case of a small job, it would pick up some one locally. At times when the factory was shut down the company would take men from the mill to the woods and have them cut. The company did not have any distinct understanding with any of its cutters that they were to do a certain amount of work or to do it in a certain way-only as to specifications, and not as to time.

The ultimate question to be determined is whether the Industrial Board was justified in finding that Duer was an employé. The appellant's contention is that Duer was not an employé, but that in truth he was an “independent contractor.” In view of the evidence, it is certain that Duer was neither a trespasser nor a mere volunteer, and that he must have been either an employé or a contractor. It clearly appears from the Workmen's Compensation Act that the Legislature has recognized the distinction between an employé and a contractor. Acts 1915, p. 395, § 14, as amended, Acts 1919, p. 159. The concepts denoted by the words “employé” and “contractor” are therefore so related that we will consider the contention in its dual aspect.

In order that we may intelligently pursue our inquiry we must have an accurate conception of the significance or import of the terms “employé” and “contractor.”

The legislative definition of “employé” is:

“Every person *** in the service of another under contract of hire or apprenticeship, written [express] or implied.”

The co-ordinate legislative definition of “employer” is:

“Any individual, firm, association or corporation *** using the services of another Yor pay.” Acts 1919, p. 175.

In the definition of “employé” the words “in the service of another” are the equivalent of “working for another”; and in the definition of “employer” the words “service” is the equivalent of “labor.”

The general meaning of the word “contractor” is shown by the following definition:

“On who contracts; one of the parties to a bargain; one who covenants to do something for another.” Webster's Dic.; Cent. Dic.

The specific meaning of the word “contractor” differs materially from its general meaning, as shown by the following definitions:

“Specifically, one who contracts to perform work on a rather large scale, at a certain price or rate, as in building houses or making a railroad.” Webster's Dic.

“Specifically, one who contracts or covenants, either with a government or other public body or with private parties, to furnish supplies, or to construct works or erect buildings, or to perform any work or service, at a certain price or rate; as a paving contractor; a labor contractor.” Cent. Dic.

The word “contractor” is sometimes used to denote a permanent occupation or business, as evidenced by the following:

“The term ‘contractor’ is applicable to all persons following a regular independent employment, in the course of which they offer their services to the public to accept orders and execute commissions for all who may employ them in a certain line of duty, using their own means for the purpose and being accountable only for final performance.” Cooley, Torts, p. 1098.

See Shearman & Redfield, Negligence, § 164.

[1] The doctrine of “independent contractor” is peculiar to the law of negligence, and we are not aware that it is appropriate to any other branch of the law. Certainly it has no proper place in the law of workmen's compensation. We will eliminate that term, therefore, from further consideration.

[2][3] The relation of employer and employé is contractual. It is created in every instance by a contract, express or implied. Rogers v. Rogers, 70 Ind. App. 659, 122 N. E. 778;Nissen v. Miller, 125 N. E. 652. There is an apparent exception to that statement. To illustrate: Where A. hires out his teams, wagons, and drivers to B. to do hauling or other work for B., and while doing the work B. has the right to control the working place and the drivers, it is commonly said in negligence cases that the drivers are the servants of B. while so engaged in his work. But in such cases the relation of master and servant is constructive, not real. It is a fiction resorted to by the courts to enable them with greater ease and facility to apply the law of negligence, especially the rule of respondeat superior. In truth, the relation of employer and employé continues to exist between A. and the team drivers; and under the Workmen's Compensation Act a team driver, receiving an injury by accident while doing B.'s work, must look to A. alone for compensation. The fiction utilized in the law of negligence has no place in the administration of the Workmen's Compensation Act. Rogers v. Rogers, 70 Ind. App. 659, 122 N. E. 778;Rongo v. Waddington, 87 N. J. Law, 395, 94 Atl. 408;Kirkpatrick v. Industrial Accident Commission, 31 Cal. App. 668, 161 Pac. 274.

[4] Having in mind the foregoing definitions, how was the Industrial Board to determine whether Duer was an employé or a contractor? The proposition must be regarded as settled that whether Duer was an employé of the hoop company at the time he received the fatal injury was a question of fact for the Industrial Board, to be determined from the evidence. Columbia, etc., Co. v. Lewis, 63 Ind. App. 386, 115 N. E. 103;Id., 65 Ind. App. 339, 166 N. E. 1;Zeitlow v. Smock, 65 Ind. App. 643, 117 N. E. 665;Sugar Valley Coal Co. v. Drake, 66 Ind. App. 152, 177 N. E. 937;Mobley v. Rogers, 68 Ind. App. 308, 119 N. E. 477;Muncie F. & M. Co. v. Thompson, 70 Ind. App. 157, 123 N. E. 196;Nissen T. & S. Co. v. Miller, 125 N. E. 652;Coppes Bros. & Zook v. Pontius, 131 N. E. 845; Miller v. C. & W. Kramer Co., 10 N. & C. C. A. 1215.

[5] Since whatever relation existed between the company and Duer was created by their contract, naturally we must look to the contract itself, as disclosed by the evidence, to find that relation. They made an express contract. Now, what do we know about that contract? Merely this: That it was a contract whereby Duer agreed to fell trees and to cut them into logs, and whereby the hoop company agreed to pay him therefor at the rate of $2.50 per thousand. That is all the Industrial Board knew about their contract, and all we know about it. The timber on which Duer was bestowing his labor was the property of...