Petzold v. McGregor

• Decision Date: 17 June 1931
• Docket Number: No. 14265.,14265.
• Parties: PETZOLD v. McGREGOR.
• Court: Indiana Appellate Court

92 Ind.App. 528

176 N.E. 640

PETZOLD

v.McGREGOR.

No. 14265.

Appellate Court of Indiana, in Banc.

June 17, 1931.

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Law by Hugh McGregor, claimant, for injuries, opposed by Louis Petzold, employer. The Industrial Board awarded compensation, and the employer appeals.

Reversed, with directions.Pickens, Davidson, Gause, Gilliom & Pickens, of Indianapolis, for appellant.

Winfield M. Fox, of Terre Haute, for appellee.

LOCKYEAR, J.

This is an appeal from a finding and award of the full Industrial Board of Indiana wherein the appellee was awarded compensation for a period of 150 weeks at the rate of $16.50 per week beginning on the 21st day of January, 1930, because of a finding by the board that the appellee was injured by an accident arising out of and in the course of his employment by the appellant, and that as a result of such injuries appellee permanently lost the sight of one eye.

The appellant herein says that there is manifest error in the finding and award of the full Industrial Board in that the award is contrary to law and is not sustained by sufficient evidence.

The appellant, Louis Petzold, was a contractor engaged in building small houses in Terre Haute, Ind. The appellee, Hugh McGregor, was a painter in said city who painted houses that the appellant built, under an agreement by the terms of which the appellee was to paint a certain sized five-room bungalow for $100; the appellant to furnish the paint, and the appellee to furnish tools and brushes.

In case any extras were required, it was paid quantum meruit and settled for after the work was done on each house.

At the time the appellee was injured, the appellant was building a six-room house and the appellee was engaged in painting it without anything being said as to how much would be paid appellee for painting the house. He was paid $123 for this job. The appellee employed his brother to assist him, and paid his brother out of the $123 which he received. The appellee, while engaged in painting the house aforesaid, used a hatchet to open a can of paint and, when he struck the top of the can, a piece of metal flew off either from the can or the hatchet, struck appellee in the eye and completely destroyed the sight of that eye.

The appellant contends that the appellee was an independent contractor, and therefore his injury is not compensable under the Workmen's Compensation Act. Burns' Ann. St. Supp. 1929, § 9446 et seq.

The appellee was paid by the job and not by the day, although the appellant and appellee arrived at the amount agreed upon by estimating the number of hours it would take to paint a five-room bungalow, and the amount it would figure at 75 or 80 cents per hour, after which the appellee received $100 for each house and paid his own help; and if anything extra was required, that was settled between the parties in a friendly way.

There is in the testimony of the appellant the statement, “I furnished all the material and directed the painting.” The general statement does not say, and there is nothing in any evidence to show, in what manner he directed any more than an owner would direct or request that a certain part of the house be painted first, or that it be painted a certain color, or the number of coats of paint; for the appellee testified, “I was not limited to the length of time to do the painting. I did not submit to Mr. Petzold a statement of the number of hours I put in on the houses. He saw that the job was there and as fast as it was done as far as I was concerned he paid me the $100. While I was working on these jobs for Mr. Petzold I did work for other people. I paid my brother on these jobs 50¢ per hour. Mr. Petzold told me that I would have to get someone to help on the job. Mr. Petzold had no control over the time I started to work in the morning or the time I quit in the evening. He had no control or directions over me in any manner whatever, except to the extent that I was to keep my work running along coincident with the plumbing and other work on these homes, and if he wanted a door stained he would come around and tell me to do it. The arrangement on the 6 room houses was the same as on the 5 room houses.”

[1][2][3] It is well settled that where one lets a contract to another to do a particular work, reserving to himself no control over such work except the right to require it to conform to a particular standard when completed, he is not liable for the negligence of the party to whom the contract is let. An independent contractor is one exercising an independent employment under a contract to do work by his own methods without being subject to the control of his employer, except as to the product or result of the work. When the person employing may prescribe what shall be done, but not how it is to be done, or who is to do it, the person so employed is a contractor and not a servant. The fact that the work is to be done under the direction and to the satisfaction of certain persons representing the employer, does not render the person contracted with to do the work a servant. Prest-O-Lite Co. v. Skeel, 182 Ind. 593, 106 N. E. 365, Ann. Cas. 1917A, 474;New Albany Forge, etc., Co. v. Cooper (1891) 131 Ind. 363, 30 N. E. 294; and cases cited; Indiana Iron Co. v. Cray (1898) 19 Ind. App. 565, 48 N. E. 803;Vincennes Water Supply Co. v. White (1890) 124 Ind. 376, 24 N. E. 747;Mobley v. J. S. Rogers Co., 68 Ind. App. 308, 119 N. E. 477;Marion Shoe Co. v. Eppley, 181 Ind. 219, 104 N. E. 65, Ann. Cas. 1916D, 220;Zeitlow v. Smock, 65 Ind. App. 643, 117 N. E. 665;Switow v. McDougal, 184 Ind. 259, 111 N. E. 3.

In the case of International Agri. Corp. v. Slappey (1919 C. C. A.) 261 F. 279, 280, it was held that a man who had undertaken to paint the defendant's plant and furnish “all tools and tackle necessary to the satisfactory completion of said work” was an independent contractor. To the same effect is the case of Perham v. American Roofing Co., 193 Mich. 221, 159 N. W. 140, where a man was to put on a roof at $1.75 per square, he was injured while at said work and the Supreme Court of Michigan held he was an independent contractor, and the action of the Industrial Board in allowing compensation was set aside.

In the case of Svolos v. Harry Marsch & Co. (1921) 195 App. Div. 674, 186 N. Y. S. 689, a man holding himself out as a painting contractor entered into a written agreement to paint a building for a certain sum, “according to specifications attached” and to furnish all labor, ropes, brushes and tools to complete the work. It was also stipulated that if there was any delay of more than eight hours, except such as might be due to weather conditions, the employee was at liberty to go on and complete the work. Held, that the person employed was an independent contractor and therefore not within the scope of a Workmen's Compensation Act.

In Hungerford v. Bonn (1918) 183 App. Div. 818, 171 N. Y. S. 280, the claimant was a paper hanger and painter and had a small shop back of his house. He had one or more employees, and carried compensation insurance upon them. He kept an automobile which was used principally by him in his business in carrying his paint, ladder, paper, and other materials, and workmen. He took contracts for work and worked by the day for whomsoever required his services, receiving $4.80 per day for himself and the same for his men. He furnished the material charging the value of them in his bill. He paid the men $4 per day. The extra 80 cents per day paid for each man charged for, compensated him for the use of his brushes, implements, the cost of compensation insurance, and the incidents of the employment with perhaps a little profit. He took a contract to perform certain work upon a house for $175, and it was understood that certain other work, the...