Meek v. Julian

• Decision Date: 17 October 1941
• Docket Number: 27627.
• Citation: 36 N.E.2d 854,219 Ind. 83
• Parties: MEEK v. JULIAN.
• Court: Indiana Supreme Court

36 N.E.2d 854

219 Ind. 83

MEEK v. JULIAN.

No. 27627.

Supreme Court of Indiana

October 17, 1941

Todd & McCormack, of Indianapolis, for appellant.

Rocap & Rocap and Thomas M. Cooney, all of Indianapolis, for appellee.

SHAKE Judge.

The appellant made application to the Industrial Board of Indiana for an adjustment of compensation. The claim was heard by a single member of the board, who found that the appellant was employed by the appellee, and sustained a personal injury by accident arising out of and in the course of the employment resulting in an impairment of vision. The appellee petitioned for a review by the Full Board, which found, by a majority of its members, that the appellant was not an employee of the appellee within the meaning of the Compensation Law Burns' Ann.St. § 40-1201 et seq. From the award of the Full Board that the claimant take nothing, there was an appeal to the Appellate Court, which reversed the award. Meek v. Julian, Ind.App.1941, 32 N.E.2d 737. The case comes to us by way of petition to transfer.

It is apparent from the record that the substantial question before the Industrial Board was whether the claimant was an independent contractor or an employee within the terms of the Compensation Law. The act provides that:

'The term 'employee,' as used in this act, shall be construed to include every person, including a minor, in the service of another, under any contract of hire or apprenticeship, written or implied, except one whose employment is both casual and not in the usual course of the trade, business, occupation or profession of the employer.' § 40-1701, Burns' 1933, § 16449 Baldwin's 1934.

The courts have construed 'employee,' as used in the act, as not to include an independent contractor. Columbia School Supply Co. v. Lewis, 1916, 63 Ind.App. 386, 115 N.E. 103.

A claimant for compensation makes out a prima facie case, in so far as his relationship with his employer is concerned, when he establishes that he was in the service of the latter under a contract of hire, express or implied; and if the employer wishes to defend on the ground that the employment was casual or not in the usual course of the employer's business, the burden is upon him to show such exception. Domer v. Castator, 1925, 82 Ind.App. 574, 146 N.E. 881. The same rule is applied when the employer asserts that the claimant was an independent contractor. In re Dobson's case, 1925, 124 Me. 305, 128 A. 401, 42 A.L.R. 603; Washington Recorder Pub. Co. v. Ernst, 1939, 199 Wash. 176, 91 P.2d 718, 124 A.L.R. 667; 27 Am.Jur., Independent Contractors, § 59. A measure of liberality is indulged in construing the legislative definition of 'employee,' to the end that in doubtful cases an injured workman or his dependents may not be deprived of the benefits of the humane provisions of the compensation plan; and doubt as to whether the claimant was an employee or an independent contractor is resolved in favor of the former status. J. P. O. Sandwich Shop, Inc. v. Papadopoulos, 1938, 105 Ind.App. 165, 13 N.E.2d 869; Domer v. Castator, supra.

The appellee was a general contractor engaged in building and repairing...