Hoosier Veneer Co. v. Ingersoll

Remy, J. — This is an appeal from an award of the Industrial Board, and the only question involved is the sufficiency of the evidence to sustain the board’s finding that appellee was, at the time of his injury, an employe of appellant. It is urged by appellant that the evidence shows appellee to have been, at the time, an independent contractor. The facts as shown by the evidence are substantially [519] as follows: Appellee was a farmer who from time to time hauled logs for timber buyers who had purchased timber in his neighborhood, such work being done by him at such times as it did not interfere with his farm work. A short time prior to his injury, one Mutchler an agent of appellant called appellee by telephone, and told him that- appellant had purchased a certain tract of timber, and asked if appellee and his brother-in-law, Herron, would haul the logs to the railroad. In response, appellee told Mutchler that they would try it for a while, and see if they could make wages, and if they found they could not make wages they would quit. Nothing was said at the time as to how much they were to be paid; but they were told to go ahead with the work. Appellee and Herron each began to haul, each using his own team and wagon, chains, skids, etc., and each kept an account of the number of feet of timber, log measure, he had hauled, each reporting to appellant, and each was paid for the number of feet hauled by him, as per his statement to the company. Compensation was at first $1.75 per hundred, but upon complaints by appellee and Herron that they could not make wages the pay was increased to $2 per hundred. The haulers had the choice as to what road they would haul over, how long they would work each day, and on what days they would work, except that they were “not to haul when it was too muddy.” Nothing was said as to any definite time within which the work was to be done. , There was no certain amount of timber to be hauled by them, or either of them, and neither was required or undertook to haul all of the timber or any definite part thereof. As to the manner of loading the logs and the number of logs in a load, each hauler determined for himself. After appellee and Herron had been hauling, Mutchler said to appellee that he “had a notion to put on some other teams,” but, upon an offer by appellee to furnish another team [520] to be driven by his son, Mutchler said that in that event he would have all the teams he needed. Appellee and Herron did not always haul at the same time, and neither had any control over the other as to when or how he should haul. Frequently when both were hauling they would “work together just for company or to help each other out when in a tight place.” Appellee and Herron loaded upon cars the logs they hauled, for which work they received thirty-five cents per hundred. In this they always worked together. This was under a separate arrangement entered into through Mutchler after the parties had been employed to haul the logs. Appellee’s son began hauling on Monday before appellee was injured later in that week, and got his pay from appellee out of the last pay check received by appellee, which was in accordance with the directions of Mutchler, who at the time the son began hauling told appellee to include the amount due the son in appellee’s statement, and appellee could pay his son. Appellee was injured while he was in the act of fastening logs on his wagon preparatory for hauling. 1. In a proceeding before the Industrial Board for compensation, the question as to whether the person who suffered the injury was at the time an employe, is an ultimate fact to be determined from the evidence. If the evidence presented to the Industrial Board at the hearing is conflicting, or if from such evidence reasonable minds might draw opposite conclusions, the question is for the board. McDowell v. Duer (1922), ante 440, 133 N. E. 839; Coppes Bros. & Zook v. Pontius (1921), 76 Ind. App. 298, 131 N. E. 845; Board v. Shertzer (1920), 73 Ind. App. 589, 127 N. E. 843. See also, Sargent Paint Co. v. Petroytzky (1919), 71 Ind. App. 353, 124 N. E. 881. [521] 2. [520] In the case of McDowell v. Duer, supra, which was recently decided by this court, the facts found by the In [521] dustrial Board are similar to the facts in the case at bar. The controlling questions of law, which are the same in both cases, were fully considered in the court’s opinion in that case. Since we adhere to the law as there laid down, no good purpose would be served by a restatement in this opinion. We hold that there is evidence to support the finding of the Industrial Board that appellee was at the time of his injury an employe of appellant. Affirmed.