176 N.E. 640 | Ind. Ct. App. | 1931
This is an appeal from a finding and award of the full Industrial Board of Indiana wherein the appellee was awarded compensation for a period of 150 weeks at the rate of $16.50 per week, beginning on January 21, 1930, because of a finding by the board that the appellee was injured by an accident arising out of and in the course of his employment by the appellant, and that, as a result of such injuries, appellee permanently lost the sight of one eye. Appellant herein says that there is manifest error in the finding and award of the full Industrial Board in that the award is contrary to law and is not sustained by sufficient evidence.
Appellant, Louis Petzold, was a contractor engaged in building small houses in Terre Haute, Indiana. Appellee, Hugh McGregor, was a painter in said city who painted houses that the appellant built, under an agreement by the terms of which appellee was to paint a *530 certain sized five-room bungalow for $100, appellant to furnish the paint, and appellee to furnish tools and brushes. In case any extras were required, it was paid quantum meruit and settled for after the work was done on each house. At the time appellee was injured, appellant was building a six-room house and appellee was engaged in painting it without anything being said as to how much would be paid appellee for painting the house. He was paid $123 for this job. Appellee employed his brother to assist him and paid his brother out of the $123 which he received. Appellee, while engaged in painting the house aforesaid, used a hatchet to open a can of paint, and, when he struck the top of the can, a piece of metal flew off, either from the can or the hatchet, struck appellee in the eye and completely destroyed the sight of that eye.
Appellant contends that appellee was an independent contractor and therefore his injury is not compensable under the Workmen's Compensation Act.
Appellee was paid by the job and not by the day, although appellant and appellee arrived at the amount agreed upon by estimating the number of hours it would take to paint a five-room bungalow, and the amount it would figure at 75 or 80 cents per hour, after which appellee received $100 for each house and paid his own help; and if anything extra was required, that was settled between the parties in a friendly way.
There is in the testimony of the appellant the statement, "I furnished all the material and directed the painting." The general statement does not say, and there is nothing in any evidence to show, in what manner he directed any more than an owner would direct or request that a certain part of the house be painted first, or that it be painted a certain color, or the number of coats of paint, for the appellee testified: "I was not limited to any length of time to do the painting. I did *531 not submit to Mr. Petzold a statement of the number of hours I put in on the houses. He saw that the job was there and, as fast as it was done, as far as I was concerned he paid me the $100. While I was working on these jobs for Mr. Petzold, I did work for other people. I paid my brother on these jobs 50 cents per hour. Mr. Petzold told me that I would have to get someone to help on the job. Mr. Petzold had no control over the time I started to work in the morning or the time I quit in the evening. He had no control or directions over me in any manner whatever, except to the extent that I was to keep my work running along coincident with the plumbing and other work on these homes, and, if he wanted a door stained, he would come around and tell me to do it. The arrangement on the 6 room houses was the same as on the 5 room houses."
It is well settled that where one lets a contract to another to do a particular work, reserving to himself no control over such work except the right to require it to conform to a 1-3. particular standard when completed, he is not liable for the negligence of the party to whom the contract is let. An independent contractor is one exercising an independent employment under a contract to do work by his own methods without being subject to the control of his employer, except as to the product or result of the work. When the person employing may prescribe what shall be done, but not how it is to be done, or who is to do it, the person so employed is a contractor and not a servant. The fact that the work is to be done under the direction and to the satisfaction of certain persons representing the employer, does not render the person contracted with to do the work a servant. Prest-O-Lite Co. v. Skeel (1914),
In the case of International Agricultural Corp. v. Slappey
(1919), 261 Fed. 279, it was held that a man who had undertaken to paint the defendant's plant and furnish "all tools and tackle necessary for the completion of the work" was an independent contractor. To the same effect is the case of Perham v.American Roofing Co. (1916),
In the case of Svolos v. Harry Marsch Co. (1921),
In Hungerford v. Bonn (1918),
The following are a few of the cases that might be cited for the purpose of showing that payment for the whole work by specified sum is one of the ordinary incidents of an independent contractor. Harris v. McNamara (1892),
As an element tending to show the independence of the contract, the fact that no provision had been made as to the payment for the services rendered and the compensation is dependent upon the value thereof, were mentioned in Hexamer v. Webb (1886),
A contract for work of construction not infrequently provides that the appliances or materials required for the execution of the work are to be furnished by the employee, such a stipulation tends to show that the employee is *534 not a servant. Fuller v. Citizens Nat. Bank (1882), 15 Fed. 875.
The principle of interpretation has been deemed to warrant the inference that a contract is none the less independent in its character because it contains a proposition that the work is to be done under the direction and to the satisfaction of the employer's representative. Kelly v. Mayor, etc. (1854),
The following cases are also in point: A painter employed for a lump sum to paint a house, employing in the work means of his choosing and entirely within his control, is an independent contractor. Francis v. Johnson (1904),
A boss painter, undertaking to paint a building, the general supervision being entrusted to an architect, but the manner of doing the work being left to him, is an independent contractor.Metzinger v. New Orleans Board of Trade (1907),
One who agrees to do a job of whitewashing for a lump sum is an independent contractor, where there is no evidence that the owner exercised or assumed to exercise any control over the work or the appliances to be employed in its prosecution. Finkelstein v.Balkin (1907), 103 N.Y. Supp. 99.
A decorator employed to do certain work for a lump sum, furnishing all materials and tools and employing his own help, is an independent contractor, although his employer's representative directs him to work in this or that room for the purpose of preventing, as far as practicable, an interference with business.South-western *535 Tel. Tel. Co. v. Paris (1905), 39 Texas Civ. App. 424 [
In the case of Lazarus v. Sherer (1931),ante 90,
It is therefore ordered that this case be reversed, and the Industrial Board is directed to enter an order denying appellee compensation herein.
Curtis, J., dissents.