Eng-Skell Co. v. Industrial Accident Commission

[211]

RICHARDS, J.

Application for a writ of review.

The facts of the case are these: The Eng-Skell Company, one of the petitioners herein, was, in the month of March, 1917, engaged in the business of supplying soda-water fountains with the materials and compounds necessary to the conduct of such establishments. The said petitioner’s business required regular and daily deliveries by means of delivery trucks or wagons operated by a driver and making a regular daily round of its customers. In March, 1917, the said petitioner, Eng-Skell Company, entered into an agreement in writing with one George B. Rogers, who was at that time the owner of a Ford delivery truck, by which the daily use of said truck, with its driver, was agreed to be supplied by said Rogers to said petitioner, for the purposes of its said business, between the hours of 8 A. M. and 6 P. M., Sundays and holidays excepted, for a period of six months thereafter, for the sum of $1,050 for the entire term, payable in equal semi-monthly amounts of $87.50. This agreement was in the form of a written offer by said Rogers to supply said truck and driver during said term, and in connection with said offer and as a part thereof he was to deposit the sum of fifty dollars to guarantee the faithful fulfillment of his offer, in case of its acceptance, in so far as the same provided for an uninterrupted delivery service during said term. To this written offer the Eng-Skell Company affixed its acceptance, also in writing, and thereupon said Rogers entered upon the duties provided for in the agreement thus made. Said agreement was, from time to time, renewed, and was in existence under one of such renewals on the second day of April, 1919, when said Rogers, while personally discharging the duties which devolved upon him by virtue of said agreement, sustained an injury to one of his eyes, he being at the time engaged in unloading or unpacking one of the boxes of said petitioner in which its deliveries were wont to be made. Thereafter said Rogers applied to the Industrial Accident Commission for an award against said petitioner and its insurer, in due course of proceedings upon which the award in favor of Rogers was made, for the annulment of which the petitioners herein have instituted this proceeding.

[1]

The sole question presented for our determination is as to whether said Rogers was at the time of his injury an