Dietrich v. Smith , 93 Ind. App. 219 ( 1931 )

ON PETITION FOR REHEARING. Appellants have filed a petition for a rehearing in this case. We will take up the contentions of counsel in their inverse order. First, as to the statement in the opinion that the 6. assistant of Smith "did not know who was to pay him." A careful examination of the record does not disclose that this language was used by any of the witnesses. The assistant was called as a witness by the appellee. He testified that both Smith and one of the appellants had notified him to report for work on August 20, 1928. He had never been paid for his work while assisting Smith. On cross-examination by appellant's attorney, he testified as follows: Ques. "You considered Mr. Smith your employer." Ans. "Yes." This statement, of course, was a mere conclusion of the witness. There is other evidence in the record regarding the employment of the assistant, but, as heretofore stated, we do not find the exact words quoted used. But whether the assistant was an employee of Smith or appellants, while a circumstance to be considered, is not controlling in this case.McDowell v. Duer (1922), 78 Ind. App. 440, 133 N.E. 839.

Second, that the evidence is not conflicting, and that the cases of Marion Malleable Iron Works v. Baldwin (1924), 82 Ind. App. 206, 145 N.E. 559, and Petzold v. McGregor 7. (1931), 92 Ind. App. 528, 176 N.E. 640, are analogous to the instant case and must control its final determination. With this contention we cannot agree. In the case at bar, there is no evidence that Smith was ever engaged in any kind of business or trade as a contractor, or that he had ever been engaged in or made a specialty of contracting, independently, for the erection of awnings. The appellants had never before engaged or employed him in that capacity. He was head sawyer in a saw mill, he did carpenter work and mechanical work, he did odd jobs. "He was a jack of all trades." Baldwin was a professional steeple-jack, was engaged as an independent contractor in that business, he understood that he was, completed the job he had contracted to do and settled on the basis of an independent contractor. He testified as a witness in his own behalf that he "understood" that he "had the entire job" and that he "could get no pay" until the job was completed. He employed an assistant unknown to the appellants and without their knowledge. After the injury, Baldwin employed another steeple-jack to complete the job, paid him himself, and divided the profits of the job equally with his assistant. McGregor was a painter, and had been engaged for some time in painting houses at the agreed price of $100. For five-room houses, he was paid $123. For painting a six-room house, he had the same arrangement on the six-room houses that he had on the five-room houses. He made settlement on that basis. In arriving at the amount to charge for a job, McGregor estimated his labor at 75 or 80 cents per hour. He hired his brother to assist him and paid him only 50 cents per hour. He made settlement for his work on the basis of an independent contractor. Here, the appellants, after talking with Smith, and obtaining such material as was necessary to make the braces for the awning, on instructions from him how the same should be made, assembled the braces, doing a part of the work themselves, employing and paying the same man who was assisting Smith to do a part of the work the day he was killed. Here, appellants did make suggestions regarding the method of doing the work, no settlement was ever made for the services rendered by Smith. The evidence on the means of arriving at the amount to be paid, time of payment, method of settlement, control of the work, and right of either party to terminate the contract, is in such confusion and conflict that it is susceptible of supporting different conclusions. We cannot, under such circumstances, disturb the finding and award of the Industrial Board. Nissen Transfer,etc., Co. v. Miller (1920), 72 Ind. App. 261, 125 N.E. 652;Board, etc., v. Shertzer (1920), 73 Ind. App. 589, 127 N.E. 843; Coppes Bros. Zook v. Pontius (1921), 76 Ind. App. 298, 131 N.E. 845; Lazarus v. Scherer (1931), 92 Ind. App. 90, 174 N.E. 293; McDowell v. Duer,supra.

Petition for rehearing denied.