Barker v. Eddy

• Decision Date: 01 June 1933
• Docket Number: No. 14923.,14923.
• Citation: 185 N.E. 878,97 Ind.App. 94
• Parties: BARKER v. EDDY et al.
• Court: Indiana Appellate Court

97 Ind.App. 94

185 N.E. 878

BARKER

v.EDDY et al.

No. 14923.

Appellate Court of Indiana, in Banc.

June 1, 1933.

Appeal from Industrial Board.

Proceeding by Bessie D. Eddy and another against Claude V. Barker, as receiver of Beyer Brothers, to recover compensation under the Workmen's Compensation Act for the death of Albert Eddy, employee. From an award for plaintiffs, defendant appeals.

Affirmed.

Rex S. Emerick, of Kendallville, for appellant.

Ralph W. Probst, of Kendallville, and Arthur W. Parry, of Fort Wayne, for appellees.

CURTIS, Judge.

This was an action brought by the appellees as a dependent widow and minor child, respectively, of one Albert Eddy, deceased, against the appellant, to recover compensation under the Indiana Workmen's Compensation Act of 1929 (Acts 1929, c. 172), because of personal injuries received by the deceased on or about May 5, 1932, resulting in his death the next day, due to an accident alleged to have arisen out of and in the course of the employment of the deceased by the appellant. In the hearing before the single member of the board an award of compensation was made. The appellant filed an application for a review by the full board. In this latter hearing compensation was likewise awarded to the appellees. The appellant excepted to the award and then prayed an appeal to this court which was granted. Three alleged errors are assigned, only one of which need be considered, to wit: “That the award of the full board is contrary to law.” Under this assignment all alleged errors complained of may be presented.

The parts of the finding and award of the full board that are material to the determination of this appeal are as follows:

“The Full Industrial Board of Indiana having heard the argument of counsel and having reviewed the evidence, and being thereby duly advised in the premises, a majority of the members of said Board find that one Albert Eddy was employed by the defendant, Claude V. Barker Receiver of Beyer Brothers, on the 5th day of May, 1932, at an average weekly wage of $12.00; that on said date the said decedent received a personal injury by reason of an accident arising out of and in the course of his employment, of which the defendant had knowledge. That as a result of said accident said employee died on the following day, May 6th, 1932.

“The Board further finds that said decedent, Albert Eddy, left surviving him as his sole and only dependents his wife, Bessie D. Eddy, and Robert Bruce Eddy, a minor son, who was 15 years old on the 30th day of March, 1932.

“Award

“It is, therefore, considered and ordered by a majority of the members of the Full Industrial Board of Indiana that the plaintiffs Bessie D. Eddy and Robert Bruce Eddy be, and are hereby awarded as against the defendant compensation in equal shares at the rate of $8.80 per week, beginning on the 6th day of May, 1932, and to continue for a period of three hundred (300) weeks.”

The appellant says that two questions for decision are presented by the record as follow: “(1) Was the deceased, Eddy, a casual employee, and was his employment in the ‘usual course of the trade, business, occupation or profession’ of the appellant? (2) Was the deceased, Eddy, an independent contractor?”

The full board decided these questions adversely to the appellant after a consideration of the evidence the controlling parts of which may be summarized as follows: Beyer Brothers was a partnership, formed for the purpose of conducting a wholesale grocery business. It owned a warehouse, and stocks of merchandise therein, in the city of Kendallville, Ind. On May 25, 1931, the partnership was declared insolvent and the appellant was appointed receiver to wind up its business, reduce its assets to cash, and distribute the proceeds among its creditors. He took charge of the firm real estate and merchandise, hired seven employees to help him, and during the summer of 1931 was engaged in carrying on the grocery trade, at wholesale and retail, in the firm's warehouse and real estate, and at the same time continuing his efforts to collect the accounts receivable of the firm and to effect a sale of the real estate and warehouse building and the stocks of merchandise as a whole. On the 14th day of October, 1931, appellant sold and disposed of the entire stock of merchandise and equipment to a firm by the name of Jackson & McKenzie. At the same time, and in connection with such sale, the purchasers rented from the receiver the warehouse building for $25 a month, which they continued to occupy until they had completed selling out the merchandise as purchased from the receiver. They completed their sale and surrendered the property back to the receiver on the 23d or 25th of April, 1932. After the sale of the merchandise, the receiver continued the collection of the accounts through December and continued to hold, rent, and receive the monthly rentals from the warehouse building, until the temporary arrangement with Jackson & McKenzie ended, about April 25, 1932.

From the time of the receiver's appointment, on May 25, 1931, until the sale of the merchandise and equipment on October 14, 1931, the appellees' decedent, Albert Eddy, was in the employment of...