Pryor v. Indus. Accident Comm'n

LENNON,

J.

Certiorari to review a decree of the Industrial Accident Commission awarding compensation to Thurman Crane, the applicant below, for an injury sustained while pumping sand from a well on a ranch belonging to

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John P. Pryor. The award is resisted upon the ground that the injured, man was working under an independent contract and not as an employee of petitioner John F. Pryor.

The said Thurman Crane and his two brothers-in-law, Warren and Albert Martin, were engaged in the business of well-boring, and possessed two complete outfits for use in that work. They also engaged in the business of pumping sand from wells. The usual price charged for the boring of wells was $2.50 per foot, expenses were deducted, and the three shared equally the profits of the business. They had completed a contract for the boring and sinking of a well for petitioner John F. Pryor and were at work elsewhere when Pryor’s well filled with sand. Thereupon Pryor arranged with Warren Martin, the business man of the firm, that the two Martin brothers and Crane should return and pump out the sand, Pryor agreeing to pay $25 per day on condition that the three start work on the following day, which was Sunday. They took their pumping apparatus to the well and were at work there when Crane was struck by the handle of a windlass.

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Applying the accepted tests to the relationship of the parties at the time the injury was sustained, we are convinced that the work was pursuant to independent contract. It is conceded that when boring the well the firm was engaged in the performance of an independent contract. There is undisputed evidence that sand-pumping was in the same, general line of work as well-boring; that in about one-third of the cases where contracts for the boring and sinking of wells had been completely performed the firm was 'recalled for the purpose of pumping out the sand which had subsequently filled in; and that considerable equipment, such as sand-pipes, windlasses, and other apparatus, was required in this work. Both the contract for the boring of Pryor’s well and the agreement for the removing of the sand were oral, Warren Martin arranging the terms on behalf of the firm, and in both instances the contracting firm furnished its own equipment. In short, the business of sand-pumping was conducted as an incident of the well-boring business and it was carried on in practically the same manner.