Bituminous Casualty Corp. v. Powell

Dudine, P. J. Joseph Powell, deceased husband of appellee Mary J. Powell and father of the other appellees, was accidentally injured and killed while working in a coal mine operated by the White Ash Coal Company, a partnership, consisting of four partners including said decedent. At the time of his injury a policy of insurance issued by appellant corporation to said White Ash Coal Company was in force. This policy, by its provisions, insured the partnership as an employer against liability to its employees and their dependents, arising out of the Workmen’s Compensation Law. A rider attached to the policy provided as follows: “It is hereby understood and agreed that the co-partners Matt Powell, Jr., Joe Powell (decedent), Albert Powell and Matt Powell, Sr., are covered under the policy to which this endorsement is attached.” Appellees filed suit in the Knox Circuit Court against appellant to recover the amount which would be due them under the Workmen’s Compensation Law as dependents of an employee. The insurance policy was made part of -the complaint. Appellant filed a demurrer to the complaint, setting forth the ground that the Knox Circuit Court did not have jurisdiction of the subject matter. The demurrer *92 was overruled. Appellant filed an answer in general denial, and the -cause was submitted to the court for trial without a jury, and the court found for appellees and rendered judgment accordingly. Appellant filed a motion for new trial which was overruled, whereupon this appeal was perfected, the errors assigned and relied upon for reversal being error in overruling the motion for new trial, and error in overruling the demurrer to the complaint. The motion for new trial alleged, as causes therefor, that ,the decision is contrary to law, and that the decision is not sustained by sufficient evidence. Appellant contends the trial court did not have jurisdiction of the subject matter of this cause of action— that the Industrial Board had exclusive jurisdiction of the subject matter of this -cause of action. All other contentions made by appellant in its brief are incidental to said contention. The complaint alleged and the evidence showed that decedent was a partner in the employing partnership firm, that he was working for the partnership firm and receiving compensation for said work independent of any profits that he might receive as such partner, and that his injury arose out of and in the course of said employment. A similar set of facts was certified to this court by the Industrial Board, for instruction, as to whether or not, under the facts certified, the partner was an -employee of the partnership within the meaning of the Workmen’s Compensation Act of 1929, and whether the dependents of such a partner were entitled to an award for compensation as against the partnership — and this court answered the questions in the negative in In re Montgomery and Son (1929), 91 Ind. App. 21, 169 N. E. 879. Having examined the authorities listed in In re Montgomery and Son, supra, as supporting the court’s position on said questions, as well as the authorities listed *93 as being to the contrary, we think this court answered the questions correctly. See 15 A. L. R. 293, and 81 A. L. R. 654, for additional authorities supporting this court’s position. As was said by the Supreme Court of California with reference to the Workmen’s Compensation Act of that state, in Cooper v. Industrial Acc. Comm., of Calif. et al. (1918), 177 Cal. 685, 171 Pac. 684, we say with reference to the Workmen’s Compensation Act of Indiana, “The Workmen’s Compensation Act clearly does not contemplate such a mixed relation as that existing between partners, wherein each member of the partnership is at the same time principal and agent, master and servant, employer and employee and wherein each, in any services he may render, whether under his general duty as a partner or under a special agreement for some particular service, is working for himself as much as for his associates in carrying on the business of the firm.” In accordance with the position taken by this court in In re Montgomery and Son, supra, we hold that decedent was not an employee within the meaning of the Workmen’s Compensation Act. The jurisdiction of the Industrial Board is limited to questions of compensation arising between “employees” or dependents of “employees,” and the employer or the employer’s insurance carrier. For the reasons above given, the Industrial Board did not have jurisdiction of the subject matter of this cause of action. The evidence is sufficient to sustain a finding that by the provisions of the insurance policy, appellant agreed to pay to decedent’s dependents the compensation which they would be entitled to under the Workmen’s Compensation Law, it being assumed for the purpose of said insurance contract that decedent be *94 considered an “employee” within the meaning of the Workmen’s Compensation Law. The evidence is sufficient to sustain the decision of the court, and the decision is not contrary to law. No reversible error being shown, the judgment is affirmed.