Board of Commissioners v. Shertzer

73 Ind. App. 589 | Ind. Ct. App. | 1920

Remy, J.

The superintendent of the county poor asylum of Greene county, by oral direction of the board of commissioners of the county, the appellant herein, employed one John H. Shertzer, a painter and paperhanger, to do certain painting and paperhanging, for which work said Shertzer was to receive fifty cents an hour for painting and thirty cents a roll for hanging the paper. Appellant was to, and did, furnish the necessary ladders and scaffolding, and was also to select and furnish the paints, paper and other materials to be used in the work. Shertzer was to be “his own boss” as to how the paint and paper was to be put on. A few minutes after he had eaten a hearty dinner, and while doing the work, Shertzer fell from a ladder on which he was standing, and upon the floor of the room where the work was being done. When asked how he came to fall, he replied that he “became dizzy, and seemed to be going round and round.” As a result of the injuries thus received, Shertzer died ten days later. The physician who attended him stated that dizziness, such as was complained of by Shertzer, might have been the result of eating an excessive meal.

Appellees, who were the dependents of Shertzer, made application to the Industrial Board for compensation, and, upon hearing evidence showing the above facts, the board found that Shertzer at the time of his injury was in the employment of appellant, and that his death was the result of an accident arising out of and in the course of such employment, and made an award in favor of appellee Jennie M. Shertzer.

Appellant has assigned as error that the award is not sustained by sufficient evidence, and is contrary to law.

It is first urged by appellant that Shertzer' at the time of the accident which resulted in his death was an independent contractor, and that there is no evidence to sustain the finding of' the Industrial Board that he was at the time in the employment of appellant. .

1. It appears from the evidence, as above stated, that Shertzer was hired to do the painting and paperhanging, the materials to be selected and furnished by appellant; that appellant was to supply the ladders and scaffolding required in the conduct of the work, and that his compensation was to be fifty cents an hour for the painting, and thirty cents a roll for the papering. Under such contract Shertzer could have ceased work at any time he chose, and appellant could have discharged him at any time. The evidence that in the work of putting on the paint and paper Shertzer “was his own boss” must be considered in connection with the other evidence as to the relationship of the parties to the- contract, and, when so considered, it cannot be said that Shertzer must be held to have been an independent contractor. We hold that there is evidence to support the finding of the Industrial Board that Shertzer was at the time in the employment of appellant. See Muncie Foundry, etc., Co. v. Thompson (1919), 70 Ind. App. 157, 123 N. E. 196; Caca v. Woodruff (1919), 70 Ind. App. 93, 123 N. E. 120.

It is asserted by appellant that it conclusively appears from the evidence that Shertzer fell to his death as a result of an attack of vertigo, and that therefore there can be no recovery of compensation, even though it should be found that at the time of the accident he was in the employ of appellant.

2. If it be conceded that Shertzer’s fall was the result of vertigo, it does not necessarily follow that the cause of his death was the disease. A fall as a result of vertigo would not, in all probability, have caused death or serious injury, had it not been for the fact that Shertzer was at the time, and by reason of his employment, standing upon the ladder. Miller v. Biel (1920), -Ind. App. -, 129 N. E. 493. See Carroll v. What Cheer Stables Co. (1916), 38 R. I. 421, 96 Atl. 208, L. R. A. 1916D 154, Ann. Cas. 1918B 346; Wicks v. Dowell & Co. (1905), 2 K. B. 225, 2 Ann. Cas. 732. The question as to whether or not the death of the employe was the result of an accident arising out of his employment was a question for the Industrial Board. American Hominy Co. v. Davis (1920), 74 Ind. App. -, 126 N. E. 703. There is evidence to support the finding and award.

Affirmed.