Hayes v. Perry

• Decision Date: 15 April 1946
• Docket Number: 17465.
• Citation: 66 N.E.2d 73,116 Ind.App. 590
• Parties: HAYES et al. v. PERRY.
• Court: Indiana Appellate Court

66 N.E.2d 73

116 Ind.App. 590

HAYES et al. v. PERRY.

No. 17465.

Appellate Court of Indiana, in Banc.

April 15, 1946

James L. Murray, of Indianapolis, for appellants.

Paul B. Hudson and Armstrong & Gause, all of Indianapolis, for appellee.

DRAPER Judge.

The Industrial Board awarded compensation to the appellee for disability and impairment resulting from an accident hereinafter described. The employers appeal. The sole question presented is stated by the appellants as follows 'This appeal is based upon the contention that the uncontradicted evidence conclusively shows that the accident did not arise out of and in the course of the appellee's employment.'

The evidence most favorable to the appellee discloses the appellants, who are husband and wife, operating a small farm on which they also had dog kennels where they had about two hundred dogs which they bought and sold or boarded. The meat for the dogs was cut up on a jig saw in the basement of appellants' home. There was also a power saw in the basement, and about twenty feet from the power saw there was a burner which, when the supply furnished by the furnace coils was low, was used to heat water for appellants' personal use and to wash the dogs. The appellee started to work on March 5, 1945, as a general handyman for the dogs. He was instructed to look after them and do what was necessary in regard to their care and also such other odd jobs as might be specified, none of which were enumerated before he was hurt.

Mr Hayes showed the appellee how to clean the kennels and showed him how to cut up the meat. He told appellee to be careful if he ever used the power saw. On March 6th the appellants left on an errand, telling the appellee to go ahead and do the work. He finished cleaning the kennels about two o'clock in the afternoon, and having nothing else to do and not wanting to loaf, he went to the basement and commenced cutting scrap lumber into kindling for the next morning. He was accidentally cut by the saw after cutting up about a half bushel of kindling.

The appellee was neither instructed nor supposed to bathe the dogs. He was not instructed to cut kindling for the burner nor was he specifically instructed to use or not to use the power saw. Mrs. Hayes had built the fire on March 5th, using kindling for that purpose, and she showed him how to build it because he might have to do it sometime. He was not told to build a fire on the day he was hurt, nor was he building one.

The appellants first contend that the accident did not occur while the appellee was fulfilling the duties of his employment, or while he was engaged in doing anything incidental thereto. They insist there was no causal connection between the accident and the performance of any service of the employment, because the accident did not arise out of a risk which a reasonably prudent person might comprehend as incidental to the employment at the time it was entered into.

Compensation is payable only for personal injury or death 'by accident arising out of and in the course of the employment.' Burns' 1940 Repl., § 40-1202. This court is committed to the doctrine that the quoted words should be given a broad and liberal construction, to the end that the humane purposes of the Act may be realized. Nordyke, etc., Co. v. Swift, 1919, 71 Ind.App. 176, 123 N.E. 449; Lasear, Inc., v. Anderson, 1934, 99 Ind.App. 428, 192 N.E. 762.

In the case last cited the following language from Jeffries v. Pitman-Moore Co., 1925, 83 Ind.App. 159, 147 N.E. 919, 920, was quoted with approval: 'This court has correctly held that an accident occurs in the course of the employment, within the meaning of the compensation act, when it takes place within the period of the employment, at a place where the employe may reasonably be, and while he is fulfilling the duties of his employment, or is engaged in doing something incidental to it.'

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