Hahn v. Grimm

• Decision Date: 07 November 1935
• Docket Number: No. 15526.,15526.
• Citation: 198 N.E. 93,101 Ind.App. 74
• Parties: HAHN v. GRIMM.
• Court: Indiana Appellate Court

101 Ind.App. 74

198 N.E. 93

HAHN

v.GRIMM.

No. 15526.

Appellate Court of Indiana, in Banc.

Nov. 7, 1935.

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by Edward H. Hahn, employee, opposed by Fred J. Grimm, employer. From an award of the full Industrial Board dismissing the application for adjustment of compensation claim for lack of jurisdiction, employee appeals.

Reversed, with instructions.

John H. Jennings, of Evansville, for appellant.

Oscar Birch, of Evansville, for appellee.

BRIDWELL, Judge.

On the 17th day of November, 1933, appellant, while in the employ of appellee, suffered an injury by reason of an accident arising out of and in the course of his employment, resulting in the loss of more than two phalanges of the index finger of his right hand. He filed with the Industrial Board of Indiana his application for adjustment of his claim for compensation against appellee, and appellee, thereafter, filed a special answer wherein various reasons why compensation should not be awarded were alleged. Such further proceedings were had as resulted in a hearing before the full Industrial Board on appellee's application for review of an award made by one member of the Board, and following this hearing, the award was made from which this appeal was perfected; appellant assigning as error that such award is contrary to law.

The finding of facts and award of the Industrial Board, omitting formal parts, are as follows:

“The full Industrial Board ***, now finds that plaintiff was in the employ of defendant on November 17, 1933, at an average weekly wage of $9.00; that on said date plaintiff suffered an accidental injury which resulted in the loss of more than two phalanges of the index finger of his right hand. And the full Industrial Board further finds by a majority of its members, that at the time of the accidental injury defendant and the plaintiff were engaged in farm labor and that the Industrial Board is without jurisdiction in the premises.

“Order

“It is therefore considered and ordered by the Industrial Board of Indiana, by a majority of its members, that plaintiff's application for the adjustment of a claim for compensation filed January 31, 1935, should be and the same (is) hereby dismissed for lack of jurisdiction.”

Appellant contends that the undisputed evidence in this case proves that he was not a farm or agricultural employee and that the finding of the Board is not sustained by sufficient evidence, asserting that all the evidence shows that at the time of his injury he was employed by appellee to work with a corn shredder owned by appellee and used by him in the business of shredding corn for others; that he (appellant) was employed to feed such shredder while it was being operated, and to clean, oil, grease, and keep such shredder in repair.

The evidence, without conflict, shows that appellee was a farmer and that he also owned a threshing machine, a sawmill, and a corn shredder; that it was his custom each season to shred corn for others for hire, he furnishing the shredder; that in the year 1933, previous to the date of appellant's injury, he had shredded corn for others for a period of at least twenty days (appellee says twenty days, appellant three to four weeks), moving his corn shredder from place to place; that on the day of the injury appellee intended to shred his own corn; and that morning, before the actual work of shredding had commenced, appellant was cleaning said machine, when his finger was caught between the “rollers” of the shredder, and he sustained the injury for which he sought compensation.

There is no evidence tending to prove that appellant had been employed by appellee as a farm hand to do general farm work upon his own farm or elsewhere for any period of time. The evidence is somewhat conflicting as to any work done by appellant for appellee before he was employed to “feed” said shredder and keep it in working condition, appellee testifying that before he started to operate said corn shredder that year appellant had been engaged in cutting and shocking corn for him, while appellant's testimony was to the effect that his first work for appellee that year was with the shredder. With reference to the employment, we quote from appellee's evidence, as follows:

“Q. What did you employ Mr. Hahn to do in the beginning? A. The first work...