Eley v. Benedict

46 N.E.2d 492, 113 Ind. App. 202, 1943 Ind. App. LEXIS 28

• Court: Indiana Court of Appeals
• Decided: February 9, 1943
• Docket: No. 17,056.
• Status: Published

Opinions

Flanagan, P. J. —

This is an appeal from the Industrial Board which awarded appellee compensation against appellants. . The sole question on appeal is whether the facts are sufficient to sustain the finding of the Industrial Board that appellee was in appellants’ employ at the time of the involved injury.

The evidence as to pertinent facts is undisputed. In substance it is as follows:

On August 6, 1941, one C. D. Morgan went to where appellee was working and asked him to cut timber off a certain farm known as the Ward farm. Appellee asked Morgan where Morgan would get the money to pay him and Morgan replied that he would get the money from Mr. Eley of Argos, whereupon appellee agreed to cut and haul the timber for $3.50 per thous- and feet. Appellee arranged with one Isaac Stoffer to help and Stoffer received half the money. Appellee kept the record of the number of feet. Morgan said appellee would have to go to Argos where Mr. Eley would pay him but later Morgan came back and paid appellee himself. After finishing on the Ward farm, appellee worked for another man for a while and then started cutting timber again for Morgan on a certain farm known as the Trippeer farm on November 15, 1941, where he was injured on November 24, 1941. There is no other evidence of dealings or conversations between appellee and the appellants or any of them. There is no evidence that any conversations, contracts or dealings between Morgan and appellants were ever made known to appellee.

Appellants operated a sawmill under the name of E. E. Eley. Morgan was a timber scalper who bought growing timber, some of which he sold to appellants at an agreed price per thousand feet. Morgan cut the timber and usually did the hauling, although he sometimes employed appellants to do the hauling with their trucks at a specified price per thousand feet. It was customary for appellants to advance sums of money to Morgan to pay for the timber he bought and to pay his employees. This money was sometimes advanced by check made directly to the person who was to receive it. Such advancements were charged to his account and when Morgan sold and delivered timber to appellants his account was credited with the amount of the sale. Appellants exercised no control over Morgan’s purchases and sales of timber nor over his cutting and hauling the timber. If the timber Morgan bought from a certain farmer when cut and hauled brought more than the purchase price plus the cost of cutting and hauling the profit was Morgan’s. If there was a loss, the loss was Morgan’s. This custom was followed as to the timber on the Trippeer farm. Appellants advanced the money to pay Trippeer and to pay appellee and the other men who cut and hauled the timber. The advancement for Trippeer was made by check payable to Trippeer but the amount was charged to the account of Morgan.

Prom the above facts it seems quite clear that the only relationship between appellants and Morgan was that of purchaser and seller of timber. See § 58-101, Burns’ 1933, § 14778, Baldwin’s 1934. It seems equally clear that the relationship between appellee and Morgan was that of employee and employer and that no such relationship existed between appellee and appellants.

However, appellee points to three additional items of evidence which he contends make Morgan the agent of appellants and consequently create the relationship of employer and employee between appellants and appellee:

1. The written contract between Morgan and Trip-peer for the purchase of the timber is signed “C. D. Morgan” but in the body of the contract Morgan is referred to as “C. D. Morgan, Agent for E. E. Eley.” Morgan mailed a copy of this contract to appellants.

2. Morgan testified that he was named “agent” in the contract so that if anything happened to him “Eley would have some proof for what he had paid this money for” and “would own the timber.”

3. When appellee’s accident came to appellants’ attention they notified their insurance company.

We cannot agree with appellee that the above three items of evidence can change the clear contractual relationship among the parties. The mere use of the word “agent” by Morgan in his contract with Trippeer could not make him an agent of appellants when his contractual relationship with them was clearly that of a seller. Nor could the fact that they were informed of his use of that word alter the legal effect of their transactions. It is to be remembered that the evidence does not disclose that the contents of the contract were at any time known to appellee, and we do not have here a case of “apparent authority.”

Neither would Morgan’s interpretation of the legal effect of the contract “if something should happen to him” be in any manner controlling. The fact that appellants notified their insurance carrier of the accident' might well indicate that they were not sure as to whether they were legally liable or free from liability, or even that they considered themselves liable; but it would not change the legal effect of a clear situation. We do not have here a case of interpreting an ambiguous contract by giving effect to the interpretation which the parties to it placed upon it.

We are unable to discover any evidence which justifies the finding of the Industrial Board that appellee was in the employ of appellants at the time of the involved injury.

Award reversed.

Royse, J., dissents with opinion.

Dowell, J., concurs in dissent.