DISSENTING OPINION. Because of my profound respect for the great learning and ability of my colleagues on this court, it is with real trepidation and hesitancy that I venture to dissent from the prevailing opinion in this cause. It is only upon the most urgent persuasion of my conscience that the majority opinion is in direct conflict with my conception of the duty of this court in such cases as here presented, that I am impelled to voice disagreement with their decision.
It is my understanding that this court and other similar tribunals, in considering questions similar to that presented by this appeal, are not permitted to weigh the evidence heard by the trial court or fact-finding body. The rule, as I understand it, is that if there is any evidence tending to support the verdict, or which by a reasonable inference would tend to support *Page 208 the verdict, which is legally sufficient to establish the material allegations of the complaint, this court cannot reverse the judgment because of the insufficiency of the evidence. TheFort Wayne, Jackson and Saginaw R.R. Co. v. Husselman (1878),65 Ind. 73; The Cincinnati, Hamilton and Indianapolis RailroadCo. v. Madden (1893), 134 Ind. 462, 34 N.E. 227; Lake Erieand Western Railroad Company v. Stick (1895), 143 Ind. 449, 41 N.E. 365; Columbia School Supply Co. v. Lewis (1916),63 Ind. App. 386, 115 N.E. 103; Muncie Foundry etc. Co. v. Coffee (1918), 66 Ind. App. 405, 117 N.E. 524; Haskell and Barker CarCompany v. Brown et al. (1918), 67 Ind. App. 178, 117 N.E. 555; Indiana Car and Equipment Company v. Celotto (1919)69 Ind. App. 341 121 N.E. 834; Indianapolis Heat and Light Company v. Fitzwater (1919), 70 Ind. App. 422, 121 N.E. 126; AlexanderBox Co. v. Cutshall (1920), 73 Ind. App. 287, 127 N.E. 286.
The rule is based upon the sound logic that an appellate court cannot, by merely reading the evidence, without any personal knowledge of the intelligence or character of the witnesses; without the opportunity of observing their demeanor on the witness stand, or any of those other indicia by which men ordinarily judge the truthfulness and credibility of evidence, be in as good a position to determine the facts as was the trial court. In applying the rule, the courts have used various qualifying terms, such as "reasonable evidence," "competent evidence" and "legal evidence." An examination of the opinions in which these qualifying terms occur discloses they are used synonymously and interchangeably and are intended to mean that when there is any legally competent evidence to sustain all of the material allegations of the complaint an appellate court will not reverse the finding of the trial court or *Page 209 fact-finding body when the sufficiency of the evidence is presented to it for determination. Of course, as was said in one of the early Industrial Board cases decided by this court (Haskell and Barker Car Company v. Brown et al., supra, at p. 184), "the dependent must have some evidence from which the rational mind is relieved from that uncertainty which results merely from speculation or fancy. This demand, however, is met byany evidence (my italics), though slight, which is `sufficient to make a reasonable man conclude in his favor' as to such essential facts." Citing, Sponatski's Case (1915),220 Mass. 526, 108 N.E. 466.
I am aware that in the cases of Warren v. Indiana TelephoneCo., (1940), 217 Ind. 93, 26 N.E.2d 399, and Loucks v.Diamond Chain Manufacturing Co. (1941), 218 Ind. 244, 32 N.E.2d 308, our Supreme Court has said that the finding of the Industrial Board must rest upon a "substantial factual foundation." In the Warren case, supra, the court explained what it meant in using these qualifying words by saying: "If, however, it should be made to appear that the evidence upon which the agency acted was devoid of probative value; that the quantum of legitimate evidence was so proportionately meagre as to lead to the conviction that the finding does not rest upon a rational basis; or that the result of the hearing must have been substantially influenced by improper considerations, the order will be set aside because the proof, taken as a whole, does not support the conclusion reached." With this explanation I believe that the court intended to restrict the ordinary interpretation of the term "substantial factual foundation" so that it would come within the rule hereinbefore set out. I do not believe that our Supreme Court intended to overrule its own decisions and the decisions *Page 210 of this court and to require a greater degree of proof to sustain the finding of facts than had for so many years heretofore been the rule.
In the Loucks case, supra, the Supreme Court used the expression "If the finding of the board rests upon a substantial factual foundation, it will not be disturbed," and in reversing the decision of this court affirming the award of the Industrial Board, held that if improper and incompetent evidence had not been considered there would be no evidence to sustain the award of the board. I do not consider that this decision does or was intended to overrule the long established precedent.
In the consideration of the question presented by this appeal, certain firmly established principles must be kept in mind. (1) The Workmen's Compensation Act must be liberally construed to give effect to its humane purposes. § 40-1201, Burns' 1940 Replacement, § 16377, Baldwin's 1934; Czuczko et al. v.Golden-Gary Company, Incorporated (1931), 94 Ind. App. 47,177 N.E. 466, 179 N.E. 19; Cunya v. Vance (1935),100 Ind. App. 687, 197 N.E. 737; Union Hospital v. S.P. Brown Co. (1937),104 Ind. App. 430, 11 N.E.2d 520; Kunkler v. Mauck (1940),108 Ind. App. 98, 27 N.E.2d 97. (2) The provision of the statute (Acts 1929, ch. 172, § 15, p. 536, § 40-1215, Burns' 1940 Replacement, § 16391, Baldwin's 1934), which provides: "No contract or agreement, written or implied, no rule, regulation orother device (my italics) shall, in any manner, operate to relieve any employer in whole or in part of any obligation created by this act." (3) That because of the rule of liberal construction of the Workmen's Compensation Act, where any doubt exists as to whether or not a workman is an employee or an independent contractor, the doubt is to be resolved in favor of the *Page 211 employee. Domer v. Castator (1925), 82 Ind. App. 574,146 N.E. 881; Meek v. Julian (1941), 109 Ind. App. 489, 32 N.E.2d 737; Meek v. Julian (1941), 219 Ind. 83,36 N.E.2d 854.
Based upon these principles which are the well established law of this jurisdiction, I believe there is ample evidence set out in the majority opinion to require this court to affirm the award of the Industrial Board. However, there is additional evidence in the record which substantially tends to support the award of the board.
For the purpose of presenting a more complete understanding of the relationship existing between the parties, I set out the contract between Morgan and Trippeer:
"This agreement made and entered by and between Claude Trippeer as party of the first part and C.D. Morgan, Agent for E.E. Eley as party of the second part.
"WITNESSETH.
"That Claude Trippeer is selling to C.D. Morgan, Agent for E.E. Eley 10 Sugar, 4 Red Oak, 2 Ash, 1 Popular, 1 White Oak, 1 Linn, 1 Red Elm, 5 Water Elm, 4 Sugar and 1 Red Elm tree, all of the above described timber located on the farm known as the Trippeer Farm located 1/2 mile south of the Circus Winter Quarters East of Peru, Indiana. Contract price of said timber $65.00. It is further understood that C.D. Morgan, Agent for E.E. Eley reserves the rights to remove timber without be a tresspasser, within six months from date of contract.
"It is further understood that all tops of trees are to remain on farm.
"Claude Trippeer agrees upon receipt of ____ that he will execute a bill of sale to C.D. Morgan, Agent for E.E. Eley showing the same to be free and clear of all liens whatsoever.
"In witness whereof the parties hereto have hereunto set their hands and seal this Aug. 30, 1941." *Page 212
Trippeer testified he received appellants' check for the $65.00 provided for in this contract when he signed it. In describing how the men working under him were paid, Morgan testified that in several instances these employees were paid directly by Eley, but that he usually went to Argos on Saturday morning and received from Eley the money with which to pay the cutters. Morgan said he did not have either money or equipment of his own to conduct these operations.
George E. Eley, one of the appellants, testified their business consisted of buying timber, cutting it, hauling it to the mill, and manufacturing it into lumber. He said the logs were obtained through employees known as "commission men" and from lumber scalpers. The distinction between commission men and scalpers was said to be that when the logs came through a commission man, if the timber overruns the lump price paid for the timber, its cutting and hauling, it was appellants' profit, while if it overruns when it comes from scalpers, that was the scalpers' profit. The appellant, George E. Eley, said he handled the Workmen's Compensation insurance matters and other things of that nature for appellants, and that he never received or requested from C.D. Morgan a certificate of compliance with the Workmen's Compensation law. He said Morgan did not have the money or equipment to do the work, and that the money paid to Morgan and those working under him were advances which were charged to Morgan, but admitted that if there were not enough logs delivered to appellants from Morgan's operations it would be appellants' loss.
I believe these facts fairly establish that appellants accepted the benefits of the contract and by so doing ratified it. Can it be contended that they may have the benefits in the property which was the subject of *Page 213 the contract, but simply because it was not shown that appellee saw the contract or knew its contents that the appellants may repudiate their responsibility under the Workmen's Compensation Act? I think not. Furthermore, would not the actions of the appellants in their dealings with Morgan and those persons working under him have led reasonable men to believe that Morgan was either the agent or employee of appellants?
But there is still another strong reason why I feel the award of the Industrial Board should be affirmed. If it be conceded (which I do not do) that Morgan was not the agent of the appellants, then under the facts clearly established by the record Morgan's relation with appellants was that of contractor. The appellants did not request or require a certificate of compliance with the Workmen's Compensation Act, as required by § 14 of the Act (Acts 1929, ch. 172, § 14, p. 536, § 40-1214, Burns' 1940 Replacement, § 16390, Baldwin's 1934), which provides, in part, as follows:
"Any principal contractor, intermediate contractor, or subcontractor, who shall sublet any contract for the performance of any work, to a subcontractor subject to the compensation provisions hereof, without requiring from such subcontractor a certificate from the industrial board showing that such subcontractor has complied with sections 5, 68 and 69 [§§ 40-1215, 40-1601, 40-1602] hereof, shall be liable to the same extent as such subcontractor for the payment of compensation, physician's fees, hospital fees, nurses' charges, and burial expenses on account of the injury or death of any employee of such subcontractor due to an accident arising out of and in the course of the performance of the work covered by such subcontract."
Not having complied with this provision of the act, the appellants would be liable for the injury sustained by appellee.Chicago and Erie Railroad Company v. Kaufman *Page 214 et al. (1922), 78 Ind. App. 474, 133 N.E. 399; Moore et al. v. Copeland (1928), 88 Ind. App. 54, 163 N.E. 235; Freund etal. v. Allen et al. (1934), 98 Ind. App. 660, 184 N.E. 421.
For the reasons herein set out, I feel that the decision of the majority in this case is in direct conflict with the established precedents in this jurisdiction, and the award of the Industrial Board should be affirmed.
DOWELL, J.
Concurs with this dissent.
NOTE. — Reported in 46 N.E.2d 492.