Mobley v. J. S. Rogers Company

• Decision Date: 02 May 1918
• Docket Number: 10,205
• Citation: 119 N.E. 477,68 Ind.App. 308
• Parties: MOBLEY v. J. S. ROGERS COMPANY
• Court: Indiana Appellate Court

119 N.E. 477

68 Ind.App. 308

MOBLEY v. J. S. ROGERS COMPANY

No. 10,205

Court of Appeals of Indiana

May 2, 1918

Rehearing denied October 10, 1918.

From the Industrial Board.

Proceedings by Jacob A. Mobley, under the Workmen's Compensation Act against the J. S. Rogers Company. An award by one member of the board was reversed by the full board, and the applicant appeals.

Affirmed.

Charles E. Henderson and James L. Murray, for appellant.

L. K Babcock and Forkner & Forkner, for appellee.

OPINION

IBACH, C. J.

Appellant, while engaged in cutting stone for use in the government post office building then being constructed at Newcastle, Indiana, received an injury, which resulted in the loss of the sight of one eye. He immediately made application for compensation under the Workmen's Compensation Act, Acts 1915 p. 392, § 8020l et seq. Burns' Supp. 1918, and upon a hearing before one member of the Industrial Board was allowed compensation, but upon a review before the full board such award was reversed and compensation denied.

The controlling question presented by the appeal to this court is, Was appellant an employe of appellee, or was he an independent contractor or a subcontractor? Unless he was an employe, no compensation can be recovered under the statute.

The evidence discloses that appellee was the general contractor for the construction of the government building referred to. Appellant was also a contractor, engaged in cutting and fitting stone in buildings of that nature, and had in his employ eight or more men, who were under his control and supervision, and were paid by him a wage agreed upon between themselves.

The agreement with appellee under which appellant was working when injured was in writing and is set out in full in the briefs. We have extracted the portions pertinent to the question confronting us. It begins:

"The Builders Uniform Subcontract * * * Paragraph 1. This agreement made the first day of May, 1916, between J. A. Mobley * * * parties of the first part hereafter designated the subcontractor and J. S. Rogers Co. * * * party of the second part, hereinafter designated the contractor."

Then follows:

"The subcontractor * * * agrees with the contractor as follows: Article 1. The subcontractor shall and will provide all labor and equipment for the erection of all limestone and granite used in the United States Post Office building in New Castle, Ind. * * *"

Article 2 provides that the work shall be done under the direction of the architect and in conformity to certain specified drawings and specifications. Article 4 reads:

"The subcontractor shall provide * * * facilities for inspection by the contractor * * * and he shall remove after notice all materials condemned by the architect."

Article 5 provides for the furnishing of a sufficient number of skilled workmen by the subcontractor, and, in case of default on his part in this regard, the contractor has the right to employ such labor, and all damages occasioned by such default shall be charged to the subcontractor; and in the subsequent paragraph it is provided that the subcontractor shall complete his work so as not to delay the building. Article 7 makes provision for the payment of damages to the subcontractor by the contractor, and by the subcontractor to the contractor, if any is occasioned by delay in furnishing material on the part of the one party and for delay in the prosecution of the work on the part of the other. Article 9 provides the sum to be paid by the contractor for said work and material shall be at the rate of "22 cents per cubic foot measured in the building. * * * Patching and cutting made necessary by faults of others than the subcontractor to be paid for at the rate of 75 cents per hour * * * that such sums shall be paid by the contractor to the subcontractor in current funds as follows:" Article 11 provides for the contractor taking out fire insurance as the building progresses to be paid to the parties as their interest may appear. There is a further provision to the effect that the subcontractor was to indemnify the contractor against all claims for damages arising from accident to persons or property occasioned by the subcontractor and his employes and likewise a provision that the contractor was to indemnify the subcontractor against claims of like...