Scott v. Rhoads

• Court: Indiana Appellate Court
• Citation: Scott v. Rhoads, 114 Ind.App. 150, 51 N.E.2d 89 (Ind. App. 1943)
• Decision Date: 30 October 1943
• Docket Number: 17181.
• Parties: SCOTT v. RHOADS et al.

51 N.E.2d 89

114 Ind.App. 150

SCOTT v. RHOADS et al.

No. 17181.

Appellate Court of Indiana, in Banc.

October 30, 1943

Hays & Hays and Charles D. Hunt, all of Sullivan, for appellant.

Paul F. Wells, George W. Wells, and Edward S. Everett, all of Terre Haute, for appellees.

ROYSE Chief Judge.

Appellees Rosemary Rhoads and Kay Frances Rhoads were awarded compensation by the full Industrial Board as dependents of Ellis Rhoads, whose death the Industrial Board found resulted from injuries arising out of and in the course of his employment.

The appellee Lucy Scott is designated as appellee herein merely in conformance with rules of procedure, and the term "appellees" when used herein will not include her.

The only proper assignment of error here is: The award of the full Industrial Board of Indiana dated July 8, 1943, in said cause is contrary to law.

Under this assignment appellant questions the sufficiency of the evidence to sustain the award of the full Board.

This court will not weigh the evidence (Jackson Hill Coal &amp Coke Co. v. Slover et al., 1936, 102 Ind.App. 145, 199 N.E 417; Ruth M. Hayes v. Joseph E. Seagram & Co., Ind.App. 1943, 50 N.E.2d 885, and will consider only that evidence most favorable to the finding of the Board. Ruth M. Hayes v Joseph E. Seagram & Co., supra; Carr v. Krekeler Guardian et al., 1932, 94 Ind.App. 508, 181 N.E. 526.

The record discloses that appellant owned an oil well in Sullivan County. He employed W. B. Rhoads, father of decedent, to operate the well. Rhoads' duties consisted of pumping--running the engine, and doing whatever was necessary in the operation of the well. When they had some minor trouble with the well, if the necessary work could not be done by one man, Rhoads would get someone to help him and appellant would pay the man so employed. Other persons employed by appellant on the same kind of work as that performed by W. B. Rhoads followed this practice. There is evidence that in the locality where appellant's oil well is located it was the custom, when such an emergency arose, to get a man from a nearby oil well to assist in the repair work; that such employee would be paid at the rate of $2.50 per day by the employer for whom he did the extra work; that such employee was not docked by his regular employer for the time spent on the emergency work. On October 23, 1941, W. B. Rhoads had trouble with the engine and got his son Ellis, the decedent, who was employed on another oil field, to help him. While they were working on the engine it ignited and the connecting rod on the piston went out, striking and seriously injuring the decedent. He was moved to the hospital and died the next day as the result of the injury.

Appellant contends there is no competent evidence of a contract of hire, either express or implied, between appellant and decedent. With this contention we cannot agree. While there is a conflict in the evidence, there is evidence in the record from which the Industrial Board could have found that appellant, by having paid the wage of other persons so employed, had not only knowledge of the custom but acquiesced in it, and therefore, by his conduct, he had impliedly authorized W. B. Rhoads as his agent to, under such circumstances, employ such help. Baltimore & Ohio Southwestern Railroad Company v. Burtch, 1922, 192 Ind. 199, 134 N.E. 858. The Supreme Court of the United States, in reviewing this case, speaking on the question here under consideration, said: "There is a preliminary dispute as to whether Burtch stood in the relation of employee at the time of the injury, and this we first consider. The testimony shows that Burtch was not regularly employed, but that he engaged in this particular work at the request of the train conductor, because it was necessary to unload the cutter, and the train crew was unable to do so without help. The...