63 Ind. App. 386 | Ind. Ct. App. | 1916
Appellee, while hauling goods for appellant, suffered certain physical injuries.- His cause having been regularly brought before the Industrial Board, under the provisions of the act of 1915 (Acts 1915 p. 392), a hearing before a member of the board resulted in a finding and award in appellee’s favor. The cause having been reviewed by the full board on application to that end, there was a like finding and award, from which award this appeal is prosecuted. Appellee has filed a motion-to dismiss the appeal, on the ground that appellant preséfits for our consideration no error of law.
Section 61 of the act provides, in substance, that ah award, if not reviewed in due time, or an award of the board upon such review shall be conclusive and binding as to all questions of fact, “but either party to the dispute may within thirty days from the date of the award, appeal to the appellate court for errors of. law under the same terms and conditions as govern appeals in ordinary civil actions,”
Appellant’s assignment of error in this court is in part to the effect that there was no evidence tending to show that the relation of employer and employe existed between appellant and appellee, but that the evidence affirmatively established that such relation was that of contractee and independent contractor; and that there was no evidence from which it might be determined that appellee received his injuries by accident arising out of and in the course of Iris employment.
It seems to be conceded by appellee’s counsel that, if appellee were in fact an independent contractor, rather than an employe, he is not included within the protection of the act. Such seems to be the effect of the definition of an employe as contained in the act, and as above set out. The courts so hold under similar acts. See cases collected in note to Rayner v. Sligh Furn. Co. (1914), L. R. A. 1916A 118, 247; Matter of Powley v. Vivian & Co. (1915), 169 App. Div. 170, 154 N. Y. Supp. 426; Matter of Rheinwald v. Builders, etc., Co. (1915), 168 App. Div. 425, 153 N. Y. Supp. 598.
We would not be understood as determining anything at this time respecting the scope of the terms “employer” and “employe,” as used in the act, or as indicating anything respecting the line dividing the relation thereby expressed from the relation of contractee or independent contractor, in proceedings brought under the act. The courts, however, in proceedings brought under similar acts
The motion to dismiss the appeal is overruled.
Note.—Reported in 115 N. E. 103. Master and servant, persons deemed independent contractors, see notes, 65 L. R. A. 445 ; 17 L. R. A. (N. S.) 371; 26 Cyc 1546.