Uland v. Little

• Decision Date: 07 December 1948
• Docket Number: 17800.
• Parties: ULAND v. LITTLE et al.
• Court: Indiana Appellate Court

82 N.E.2d 536

119 Ind.App. 315

ULAND v. LITTLE et al.

No. 17800.

Appellate Court of Indiana, in Banc.

December 7, 1948

Appeal from Industrial Board.

Rosenfeld & Wolfe, of Terre Haute, for appellant.

Padgett & Foncannon and Emison & Emison, all of Vincennes for appellees.

BOWEN Judge.

This is an appeal from an award of compensation by the full Industrial Board of Indiana against appellant, Claude D Uland, and in favor of appellee, Esmond Lee Little.

The error assigned for reversal is that the award of the Industrial Board of Indiana is contrary to law.

The issue presented in this appeal was whether appellee Little at the time and place of the accident suffered by him which resulted in the injuries for which compensation was awarded was in the employ of appellant, Claude D. Uland, or in the employ of appellee, Theodore Charles. The full Industrial Board found that the appellee, while in the employ of the appellant Uland at the average weekly wage of $36.00, sustained personal injuries as a result of an accident arising out of and in the course of his employment that as a result of said accidential injury appellee was temporarily totally disabled and was so disabled at the date of the hearing. The full Industrial Board further found that at the time of the accidential injury the appellee was not in the employ of appellee Charles and the full board found for the appellee Little and against the appellant Uland on his supplemental form #9 application filed therein. An award followed such finding granting appellee Little as against the appellant Uland compensation at the rate of $19.80 per week to continue until terminated in accordance with the provisions of the Indiana Workmen's Compensation Act, Burns' Ann.St. § 40-101 et seq.

The appellant in support of his assignment of error contends first, that the award of the board is contrary to law because it is not based upon an express finding that appellee Little in the work being performed by him at the time and place of the accident was subject to the control or the right to control of appellant Uland. The board in its findings found expressly that the appellee Little was not an employee of appellee Charles, and that he was an employee of appellant Uland at the time and place of the accident.

This court has laid down the rule regarding the facts which in workmen's compensation proceedings must be the subject of express findings, which are as follows: (1) That claimant was an employee; (2) that he received an injury by accident; (3) that the accident arose out of and in the course of his employment; (4) the character and extent of such injury, and (5) claimant's average weekly wage. Pearson Company, Inc., v. McDermid, 1941, 109 Ind.App. 228, 31 N.E.2d 642; Cunningham v. Colen, 1939, 106 Ind.App. 387, 20 N.E.2d 200; Muncie Foundry and Machine Co. v. Thompson, 1919, 70 Ind.App. 157, 123 N.E. 196; Sauer v. Tower Mfg. Co., 1932, 94 Ind.App. 81, 179 N.E. 801; Matlon v. Matlon, 1931, 92 Ind.App. 350, 175 N.E. 369; Swing v. Kokomo Steel and Wire Co., 1919, 75 Ind.App. 124, 125 N.E. 471.

Appellant's second proposition is that the award of the Industrial Board is contrary to law because the finding of the board that appellee Little at the time and place of the accident involved was in the employ of appellant Uland is not sustained by sufficient evidence. We must therefore determine in this appeal, whether, from the facts shown in the record there is evidence or reasonable inferences therefrom by which the board could have properly concluded that appellee Little was in the employ of appellant Uland, or whether the evidence leads inescapably to the conclusion that at the time and place of the accident Little was in the employ of appellee Charles.

It is well settled that this court will not weigh the evidence nor set aside an award of the Industrial Board where there is some evidence of probative value before the board which supports the finding and award. E. I. DuPont de Nemours Co. v. Lilly, 1948, Ind.Sup., 79 N.E.2d 387; Pearson Company, Inc., v. McDermid, supra; Stinson v. Anderson Knife and Bar Company, 1932, 94 Ind.App. 70, 179 N.E. 570; Lazarus v. Scherer, 1931, 92 Ind.App. 90, 174 N.E. 293; Standard Cabinet Co. v. Landgrave, 1920, 76 Ind.App. 593, 132 N.E. 661.

The evidence adduced at the hearing was conflicting to a considerable degree. However, from an examination of the record, the board could have properly found that the appellant Uland whose principal occupation is farming, in 1946 had entered into an agreement with the appellee Charles under which he rented him a scraper, a team, a wagon, and a man for grading and excavating purposes. Under this agreement, Charles was to pay Uland the sum of $1.75 per hour for such team, man, and tools, and whatever Charles wanted them to do they were to do. This arrangement in 1946 continued for a few weeks. Later in September 1947, Charles called Uland and asked him to send over a team, scraper, and a man. Charles agreed to pay him the sum of $1.75 per hour as he had done in 1946. Uland hired Little to drive the team on this Charles job and agreed to pay Little for such work 75¢ per hour.

There is evidence from which the board could have reasonably inferred that Uland retained the power to substitute another workman for Little to do the work on the Charles job and retained the power to recall Little at any time from the work he was doing, and that Little considered himself an employee of Uland and not subject to discharge by Charles.

Uland paid Little his money every week and Charles paid Uland. The work in which Little was engaged was certain excavating and grading work which was being done in the addition owned by Charles. When working on the job Little would come by Uland's barn in the morning and pick up the team and go out to the Charles job and then return in the evening. When this accident happened at 4:30 in the afternoon, Little testified he was going to load the slip on the wagon and go to Uland's place. His wagon was on one side of the street and h...