Muncie Foundry & Mach. Co. v. Thompson

• Citation: 123 N.E. 196,70 Ind.App. 157
• Decision Date: 09 May 1919
• Docket Number: No. 10497.,10497.
• Court: Indiana Appellate Court
• Parties: MUNCIE FOUNDRY & MACHINE CO. v. THOMPSON.

70 Ind.App. 157

123 N.E. 196

MUNCIE FOUNDRY & MACHINE CO.

v.THOMPSON.

No. 10497.

Appellate Court of Indiana, Division No. 1.

May 9, 1919.

Appeal from Industrial Board.

Proceedings under the Workmen's Compensation Act (Laws 1915, c. 106), by Joshua Thompson for compensation for injuries, opposed by the Muncie Foundry & Machine Company. From award by Industrial Board, employer appeals. Reversed and remanded, with directions.

Joseph W. Hutchinson, of Indianapolis, for appellant.

Cromer & Long, of Muncie, for appellee.

ENLOE, J.

The record in this case discloses: That on the 8th day of July, 1918, the appellee began working for appellant, at its plant at Muncie, Ind., unloading coke from the freight cars in which it was shipped to the plant, into the “bins” of appellant at said plant; that this coke was shoveled from the car into the hopper of a conveyor, by which it was carried and dumped into the bins; that appellee was working under an agreement, at the time of his injury, by which he was to receive as compensation for his labor 40 cents per ton for the coke unloaded; that, prior to the time of receiving the injury complained of, he had been assisted in unloading said coke by two other persons, one of whom assisted in unloading two cars, and the other person assisted on one car; that appellee had been doing this work without any help or assistance from any other person for several days before he was injured; that on July 19, 1918, appellee was at the plant of appellant unloading a car of coke, and, while so at work, he observed that the conveyor had stopped, and thinking it had become clogged, thereby causing it to stop, he opened a door thereon to investigate the matter; he found some pieces of coke on the belt, and in attempting to remove them his hand was caught and he was injured; that as a result of the injury he lost the thumb of his right hand by amputation, the crushing of the bones of the hand, and a lasceration of the tendons and soft tissues thereof, all of which resulted, as found by the Industrial Board, in a “75 per cent. impairment of the natural use and function of the whole right hand”; that the average weekly wage of the appellee was in excess of $24. The Industrial Board further found-

“That the plaintiff's injury was not due to any willful misconduct upon his part, and was not in violation of any specific instruction given to him by the defendant.”

A hearing was first had before one member of the board, and afterwards, on due application by appellant for review of the proceeding, a review was had by the full board, and on such hearing the board awarded compensation to appellee at the rate of $13.20 per week, for 112 1/2 weeks, beginning July 28, 1918, and from that award this appeal is prosecuted.

The error assigned is that the award of the full board in said cause is contrary to law.

Under this assignment the appellant urges three propositions, viz.:

(1) “The finding of the full board is not sustained by sufficient evidence. The specific point to which we call the court's attention is that the full board found that appellee was in the employment of appellant; whereas, in truth and in fact he was not an employé of appellant, but an independent contractor.”

[1] With this contention we cannot agree. It is frequently said in the cases that-

“To draw the distinction between independent contractors and servants is often difficult, and the rules which courts have undertaken to lay down on this subject are not always simple of application.”

See Independent Contractor, Words and Phrases,...