Gibbons v. Henke

• Decision Date: 02 December 1940
• Docket Number: 16684.
• Citation: 29 N.E.2d 995,108 Ind.App. 481
• Parties: GIBBONS v. HENKE et al.
• Court: Indiana Appellate Court

29 N.E.2d 995

108 Ind.App. 481

GIBBONS v. HENKE et al.

No. 16684.

Appellate Court of Indiana, in Banc.

December 2, 1940

Chas A. Lowe and Robert A. Ritzmann, both of Lawrenceburg, for appellant.

E J. Boleman and W. E. Hart, both of Indianapolis, for appellees.

BRIDWELL Judge.

Appellant appeals from an award of the full Industrial Board denying him compensation, assigning as error that the award is contrary to law.

The board's finding was "that plaintiff (appellant) was not an employee of the defendant (appellees) within the meaning of the Indiana Workmen's Compensation Act," and in the award appealed from it was ordered that he "take nothing by his complaint herein and that he pay the cost of this proceeding."

The evidence establishes that appellant was a carpenter, and maintained a shop wherein he kept his tools and did some work; that appellees were operating an hotel, and on different occasions prior to the date of his injury appellant had done work for them. There is, however, nothing in the evidence to indicate that at or prior to the date of the accident resulting in appellant's injury he had ever been regularly employed by appellees to perform services of any character over any definite period of time. On Saturday, June 3, 1939, he was at the hotel, did some work, the nature of which he did not remember, and appellee Harriet Henke informed him they desired to install an exhaust fan in one of the windows of the hotel, and wanted to know when he could do it. She was told "most any time," except that he was busy that day and had most of the day "taken up." Appellant suggested that he could do the work desired the next day, Sunday, but was told by Mrs. Henke that she did not like Sunday work. Appellant then told her he could come on Monday following, which he did, arriving at the hotel about 8 o'clock a. m. to start the work, when a lady from Indianapolis inquired of him if he was going to work upstairs, and upon learning that such was his intention told him that there were some people asleep and asked if he could wait until a later hour, which he did. This lady, so far as the record discloses, and so far as appellant knew was not "connected with the hotel in any way." Appellant went home, did "some short odd jobs and went back at noon." The work was not completed until the following day, and after the fan was installed appellant was "trying the switch out to see how it would work, to see if it was wired correctly." He tried it on high and low speed, and had just turned the switch off when he observed that a tag was left attached to the fan, and in attempting to remove same while the fan was "coasting" he was injured, and as a result has suffered a complete loss of use of the middle finger of his left hand.

When the arrangements were made for appellant to install the fan nothing was said about what pay he should receive for doing so. The fan was furnished by appel...