80 Ind. App. 423 | Ind. Ct. App. | 1923
January 12, 1928, one William E. Jackson was killed by being struck by a railway train at a street crossing in the city of Connersville, Indiana. At the time he was so struck and killed he was hauling coal for appellant, using therefor an automobile truck which he was then and there driving.
An application for compensation having been filed, the cause was first heard by one member of the board and resulted in an award of compensation to the appellees. On application for review, the cause was heard by the full board, additional testimony heard, and this hearing also resulted in an award of compensation to the appellees, from which award this appeal is prosecuted.
While the matters in controversy were pending before the full Industrial Board the appellant filed a special answer alleging that the death of the deceased was caused by (a) the committing by the deceased of a misdemeanor, to wit: the driving of a motor vehicle as a chauffeur without having first obtained a chauffeur’s license, and (b) the willful failure and refusal of said Jackson to perform a statutory duty, to wit: his failure obtain from the secretary of state a chauffeur’s license before driving a motor vehicle upon the public highways of the State of Indiana.
Upon this appeal the appellant urges a reversal upon the grounds stated in its special answer; the facts alleged in said answer having been, upon the said hearing, stipulated as being true. It also urges that
As to whether the said Jackson, at the time he' received his said injuries, was an employe or a contractor was, 'under the repeated decisions of this court, upon the record before us, a question of fact for. the Industrial Board. Muncie Foundry, etc., Co. v. Thompson (1919), 70 Ind. App. 157, 123 N. E. 196. The Industrial Board having found that Jackson, at the time he received said .injuries, was an employe, and there being some evidence to support such finding, the same is conclusive upon us.
The remaining contentions of appellant center around the question as to whether or not the deceased was, at the time he received his said injuries, acting as a chauffeur within the provisions of §10464 Burns 1914, Acts 1913 p. 779. By that section of our statute a “chauffeur” is defined as, “any person operating or driving a motor vehicle as an employe or for hire.”
In this connection it is well to note that the appellant herein was not, as shown by the undisputed testimony and about which fact there is no dispute, the owner of the truck which the deceased was driving at the time he was killed. Appellant, as disclosed by this record, had no interest in said truck; it belonged to one Williams who had given Jackson permission to use the same in doing hauling about the city of Connersville. So far as the appellant is concerned in this case, the said truck was in Jackson’s possession and he was using it, and rightly so, as his own property, hauling and delivering coal therein. He, upon the record before us, was in no proper sense a chauffeur, a person operating
The award is affirmed.
