OPINION
DAUSMAN, C. J.--
On
June 5, 1917, one Horace M. Rogers was driving an automobile
on a public highway. The automobile was accidentally
overturned, the machine and driver both falling into a ditch.
While held down by the automobile he died by suffocation or
drowning. The appellants, his widow and five children
applied to the Industrial Board for an award of compensation
on the ground that his death arose out of his employment with
the firm of Rogers and Brown. A hearing before one member of
the board resulted in an award at the rate of $ 10.45 per
week. The appellees procured a review by the full board. On
June 22, 1918, the full board reviewed the evidence and heard
the argument of counsel, and thereupon took the matter under
advisement.
On July
15, 1918, the board made the following entry of record:
"That it is unable to determine with certainty whether
Horace Rogers, at the time he received the injuries resulting
in his death, was working for John S. Rogers and Luther Brown
as a partnership, or was working for John S. Rogers
individually. To the end that this point may be made definite and certain by evidence, said cause is
continued for further hearing upon review
and the parties are hereby given permission to introduce
additional evidence."
On
September 16, 1918, additional evidence was introduced, and
the matter was again taken under advisement.
On
November 1, 1918, the Industrial Board, by a majority of its
members, denied an award and ordered that the appellants take
nothing by their complaint, and that they pay the costs of
the proceeding. The minority member of the board was of the
opinion that on the facts the appellants are entitled to an
award.
There
is no controversy whatsoever concerning the following
evidential facts: "John S. Rogers and Luther Brown were
partners, engaged in the business of constructing and
repairing highways in the firm name of Rogers & Brown. The
firm had contracts for the construction of at least two roads
in Monroe county. One of these roads is known as the Dolan
road, and the other is known as the Harrodsburg road. As a
matter of convenience and expediency, the members of the firm
divided their work. Rogers had charge of the work on the
Dolan road, and Brown had charge of the work on the
Harrodsburg road. Each member of the firm owned, as his
individual property, a Ford roadster. The firm owned, as firm
property, a motor truck and some teams. Each member of the
firm also owned some teams individually. Three teams were in
use on the Dolan road. Brown had about twenty men working
under him on the Harrodsburg road. Whenever on account of
rain it became too wet to work down at the
Harrodsburg job, Brown and his entire crew would come up to
the Dolan road where they would work until conditions would
permit them to resume at the former place. Sometimes John S.
Rogers and the men under him would go down to the Harrodsburg
road and work there.
"Horace
Rogers was a son of John S. Rogers, and was about 29 years of
age. He had a wife and five children with whom he lived as
head of the family. He had been employed by Rogers & Brown
ever since the firm was organized in 1915. He acted as a sort
of general helper. He would run the drill, boss the quarry,
direct the workmen, and do whatever the firm had for him to
do. He had no regular hours for beginning or quitting work.
Sometimes he would get up at three o'clock in the morning
and load the holes and shoot them. He sometimes hauled coal
on the truck. Sometimes he would start at nine o'clock or
later in the evening to take supplies on the motor truck from
Bloomington to the camps. The Dolan camp was about six miles
north, and the Harrodsburg camp was about fifteen miles
south, from Bloomington. He would use either automobile, or
the truck, as convenience required, in the business of the
firm. He would convey men and supplies back and forth between
town and camps; and that was part of his work. During the
progress of the work on the Harrodsburg road he spent
practically all of his time there with Mr. Brown. He had more
experience in road building than Mr. Brown, and the latter
relied on him for advice. The firm paid him $ 15.00 per week
and board at the camp. The board was worth $ 4.00 per week.
His wages had been paid him uniformly by the firm of Rogers & Brown.
"On the night of April 4, 1918, it rained
so that it became too wet to work. The next morning Horace
went to Bloomington to register for military service, and Mr.
Brown went with him. They arrived at Bloomington about eleven
o'clock a. m. At noon Horace went to his own home for
dinner. After he had registered, he and Brown bid on a road
contract which the county commissioners were letting on that
day. The bids were opened at 2 p. m. and their bid was
rejected. About 4 p. m. he showed Brown his registration card
and said jokingly that he would not need that road contract,
for he would have to go to war. Then Brown and Horace went to
a garage. At the garage Horace said to Brown: 'I will go
and take the men out there. How long will you be gone?'
Brown answered: 'Not very long.' Horace replied:
'Well, if I am not back when you get back, you wait here
and I will meet you and we will go back to the work at
Harrodsburg.' Then Horace took his father's car and
started to the camp at Dolan, to take the men out there.
Brown waited for him until supper time. Then, supposing that
Horace had gone to his own home to get supper, as he
sometimes did, Brown stepped into a picture show. Soon after
entering the picture shown, Brown was informed of the
accident.
"Two
other workmen went from the Dolan camp to Bloomington that
morning to register for military service. One of them, Andy
Walke, worked on the Dolan job part of the time, and part of
the time on the Harrodsburg job. At this particular time he
was up north of town on the Dolan job. In addition to his
work on the road he was also stable boss at the Dolan camp.
It was his duty to see that all the horses there had proper
care. John S. Rogers was in Bloomington
that morning, but left at 10:10 a. m. for Osgood. Before
departing he left instructions for his son Horace to take his
Ford roadster and convey the two workmen from Bloomington to
the Dolan camp. He was anxious about the matter and wanted to
be sure that Walke would be at the camp that evening to care
for the horses. In obedience to this order, Horace took the
two men to the Dolan camp, intending to return to Bloomington
and from there to go to the Harrodsburg camp. On his way
back, the road being wet and slippery, the machine skidded
and turned over resulting in his death. The firm of Rogers & Brown carried insurance for the benefit of their employes in
accordance with the Workmen's Compensation Act."
From
the facts as above stated there is but one legitimate
conclusion to be drawn, viz., that the death of Horace Rogers
arose out of his employment with the firm of Rogers and
Brown. It will be observed that for a considerable time he
had been employed by the firm of Rogers and Brown, and that
his wages had been paid uniformly by the firm of Rogers and
Brown. When the nature of the work which he had been doing
from day to day for that firm is taken into consideration
the presumption naturally arises that, while conveying the
workmen to the camp and returning therefrom, in obedience
to the order given by a member of that...
