Rogers v. Rogers

• Citation: 122 N.E. 778,70 Ind.App. 659
• Decision Date: 18 April 1919
• Docket Number: No. 10470.,10470.
• Court: Court of Appeals of Indiana
• Parties: ROGERS et al. v. ROGERS et al.

70 Ind.App. 659

122 N.E. 778

ROGERS et al.

v.ROGERS et al.

No. 10470.

Appellate Court of Indiana.

April 18, 1919.

Appeal from Industrial Board.

Proceedings under the Workmen's Compensation Act by Edna Rogers and others for compensation for the death of Horace M. Rogers, opposed by John S. Rogers and another as employer. Order of Industrial Board denying award, and claimants appeal. Reversed, and board directed to make an award of compensation.

Lee & Lee and Rufus H. East, all of Bloomington, for appellants.

Robert G. Miller and James W. Blair, both of Bloomington, and L. K. Babcock, of Indianapolis, for appellees.

DAUSMAN, C. J.

On the 5th day of June, 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 & 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 motortruck 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 20 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 3 o'clock in the morning and load the holes and shoot them. He sometimes hauled coal on the truck. Sometimes he would start at 9 o'clock or later in the evening to take supplies on the motortruck from Bloomington to the camps. The Dolan camp was about 6 miles north, and the Harrodsburg camp was about 15 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 per week and board at the camp. The board was worth $4 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 11 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 show, 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 employés in accordance with the Workmen's Compensation Act [Laws 1915, c. 106].”

[1] 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 the employment with the firm of Rogers & Brown. It will be observed that for a considerable time he has been constantly employed by the firm of Rogers & Brown, and that his wages had been paid uniformly by the firm of Rogers & 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...