65 Ind. App. 643 | Ind. Ct. App. | 1917
This is an appeal from an award of the Industrial Board of Indiana against appellant and in favor of appellee, by the terms of which the latter was allowed fifteen weeks' compensation at the rate of $9.90 a week, to be paid in a lump sum, $15 for medical expenses, and costs. The award was made by the full board upon a review of the evidence produced at a prior hearing before one of its members.
Appellant has assigned as error that the award of the full board is contrary to law. Appellee contends: (1) That such assigned error presents no question, and (2) that because of its failure to file any answer in the proceeding before the Industrial Board, appellant has waived any defense which it may have had, that by such failure it confessed the averments of the complaint and nothing remained for the board to do but to “classify the injury and assess the amount of recovery.”
In answer to appellee’s second contention, supra, appellant directs our attention to those provisions of §55
The Industrial Board has found as a fact, that appellee at the time of his injury was in the service of appellant “as an employe”; that at such time appellee was employed by appellant in the usual course of his busi
As affecting this question, the evidence is, in substance, as follows: Appellee testified that he was injured on November 22, 1916, by the falling of a radiator, which he was unloading from a wagon, upon his thumb; that he was then working for appellant. (We quote.) “Q. Tell the court whether or not you were
In the case last cited, on page 597, the Supreme Court expressly recognizes the controlling influence of said test in the following language: “An independent contractor is one exercising an independent employment under a contract to do certain work by his own methods, without subjection 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.”
Appellee insists in effect that the mere fact that appellant did not exercise the right to direct or control the method, manner, means, or time of doing said work is not of controlling importance; that it is the right to exercise such control which creates the relation of employer and employe. This is probably true, but the evidence here fails to show the reservation of such right by appellant, and the only evidence which can be said to throw any light upon such question is that which shows an absence of the exercise of such control by appellant, and an exercise of the right of such control by appellee. To our minds the evidence is susceptible of but one inference, viz., that the relation which appellee sustained to appellant when injured was that of an independent contractor. It, in any event, fails to show the
Note. — Reported in 117 N. E. 665. Workmen’s compensation: whether independent contractors and employes of subcontractors are employes within meaning of acts, L. R. A. 1916A 118, 247, L. R. A. 1917D 148; procedure under act, applicability of rules governing actions generally, Ann. Cas. 1915A 741; review of facts on appeal under act, Ann. Cas. 1916B 475, 1918B 647; occupations or employments within purview of acts, Ann. Cas 1917D 4. See under (9) 26 Cyc 970.