Nissen Transfer & Storage Co. v. Miller

• Decision Date: 16 January 1920
• Docket Number: No. 10622.,10622.
• Court: Indiana Appellate Court
• Parties: NISSEN TRANSFER & STORAGE CO. v. MILLER.

72 Ind.App. 261

125 N.E. 652

NISSEN TRANSFER & STORAGE CO.

v.MILLER.

No. 10622.

Appellate Court of Indiana, Division No. 2.

Jan. 16, 1920.

Appeal from Industrial Board.

Proceedings under the Workmen's Compensation Act (Laws 1915, c. 106) by Margaret Miller for compensation for the death of her husband, Henry Alfred Miller, opposed by the Nissen Transfer & Storage Company, employer. Award by Industrial Board for claimant, and employer appeals. Affirmed.

The appellee is the widow of Henry Alfred Miller, deceased. She filed her application for an award of compensation on the ground that her husband, while in the employment of appellant, received an injury by accident arising out of and in the course of his employment, which injury resulted in his death. The Industrial Board, by all its members, awarded her compensation at the rate of $11 per week. Appellant contends that at the time of receiving the fatal injury Henry Alfred Miller was not an employé of appellant, but that he was either a partner or an independent contractor. This contention presents the main controversy.

There is little, if any, dispute as to the following statement of facts:

For a considerable length of time Niels A. Nissen has been engaged in the storage and transfer business in the city of Indianapolis. He conducts the business in the name of the Nissen Transfer & Storage Company. He owns a warehouse, barn, or stable, horses, harness, and wagons. The business consists mostly in moving or storing household goods -sometimes both moving and storing them. He had several men with him, who assisted in carrying on the business. One of these men was Henry Alfred Miller. He drove one of Nissen's teams for years. In the latter part of June, 1918, he was loading furniture into a car, when a heavy crated piece fell against him, inflicting the injuries from which he died.

Miller was not paid by the hour, day, or week. His compensation was not fixed on the basis of time, but was measured by the amount he brought in. Nissen furnished the stable, the horses, the feed, the wagons, and paid for repairs. Miller went each morning to the stable for the team. Usually he would go to his stand at draymen's headquarters on East Washington street, and would do whatever work he could get to do. If Nissen took orders for work, he directed Miller to attend to it. Miller employed such helpers as he needed from time to time, and paid them out of the moneys he collected from the customers. Each evening he accounted to Nissen for the day's business, and the net earnings were divided equally between the two. The net earnings were determined by deducting from the total receipts the amount Miller paid for helpers. Miller had some furniture tools. Nissen had several other men driving his teams on the same plan. He carried workmen's compensation insurance on the men.

We glean the following from Mr. Nissen's testimony:

“I am the sole owner of the business. I run it under the name of the Nissen Transfer & Storage Co. At times I employ a number of men. Miller drove one of my teams for years. He was not really employed, so to say.

Q. He was not employed by you at all? A. Well, not so to say.

Q. You say he didn't work for you, was not employed by you? A. He didn't work for me on a salary, so to say.

Q. How many men have charge of your teams now? A. Two.

Q. But you do not consider them your employés? A. Not exactly.

Q. You took contracts to do hauling and transfer work? A. Yes, sir.

Q. And directed Miller where to go with this team and what hauling to do? A. Yes, sir.

Q. And the arrangement was that he was to be paid a commission instead of a straight weekly salary? A. Yes, sir.”

On July 9, 1918, Nissen reported to the Industrial Board that Miller was injured June 24th and died July 8th, and that he had been working for Nissen on a commission basis.

“Q. You understood all the facts then as well as you do now, didn't you? A. Yes, sir.

Q. You testified at the coroner's inquest, didn't you? A. Yes, sir.

Q. That is your signature, is it not? (Shown paper.) A. Yes, sir.

Q. ‘On June 24, 1918, was Alfred Miller employedby you? A. Yes, sir.’ Did you so testify before the coroner? A. Yes, sir.

Q. How is it you tell the court now you didn't employ him? A. Well, I didn't exactly say I didn't employ him. He was working for me.

Q. Did you report the matter of his injury and death to the Western Indemnity Company? A. Yes, sir.

Q. If you did not consider him an employé...