Klumpp v. Industrial Accident Commission

THOMPSON (R. L.), J.

This is an application for a writ of review from the award of the Industrial Accident Commission to the respondent Huntley in compensation for injuries sustained in the course of his employment while engaged in painting the store front and awning of the petitioner.

It is contended the claimant was not engaged as an employee at the time he sustained the injuries of which he complains, because^ (1) he was painting this petitioner’s store front as a contractor and not as an employee, (2) his

[735]

employment was casual, and (3) he was then actually working on an awning frame which was not on the petitioner’s premises, but belonged to a neighbor merchant.

The Industrial Accident Commission found that “E. B. Huntley . . . while employed as a painter ... by Louis Klumpp sustained injury occurring in the course of and arising out of his employment. ...” While there is a conflict of evidence as to the nature of the contractual relationship, there is substantial evidence thereof, together with reasonable inferences which may be drawn therefrom which will adequately support the findings.

The claimant was both a painter and a carpenter. He had previously worked for this petitioner for a wage of $6 per day. It is true nothing was said about compensation for services at the time of employment. It may be inferred the employer understood he was to allow the same wages theretofore paid for similar service. The employer at first assumed he was to purchase the paint. Afterward he consented to the claimant selecting and purchasing the stock for painting. Slight evidence exists to the effect that the employer assumed the authority to dictate as to the manner of performing the work. When the painter was about to conclude his work the employer said, “Are you all through?” to which the claimant replied that he was. Thereupon the employer said, “Why you have not puttied those holes yet.” The claimant promptly returned to putty the holes in the surface of the boards. While he was engaged in this process the ladder upon which he was working slipped. He fell to the sidewalk and sustained a broken femur. There is a conflict of evidence regarding the puttying of the holes. This court is, therefore, bound by the evidence which tends to sustain the findings. Respecting the employment, Mr. Huntley testified: “Q. How did you happen to start this painting ? A. Why Mr. Klumpp hired me to do it. . . . About two days previous to doing it . . . Mr. Klumpp came to me and we talked this over ... in front of his store. ... He said, ‘I will buy the paint here, and you can begin the work tomorrow morning. ’ . . . Q. Was anything said about payment (of wages) ? A. No sir. . . . Q. Nothing at all was said about pay? A. Not at that time—no. He always knew my wages; I worked for him several years.” At a former hearing of the case he