Industrial Commission of Ohio v. Murphy

• Decision Date: 07 January 1935
• Citation: 197 N.E. 505,50 Ohio App. 148
• Parties: INDUSTRIAL COMMISSION OF OHIO v. MURPHY.
• Court: Ohio Court of Appeals

197 N.E. 505

50 Ohio App. 148

INDUSTRIAL COMMISSION OF OHIO v. MURPHY.

Court of Appeals of Ohio, First District, Hamilton.

January 7, 1935

Proceeding under the Workmen's Compensation Act by Timothy Murphy claimant, opposed by the Industrial Commission. To review a judgment providing for participation by the claimant in the State Insurance Fund, the Industrial Commission brings error.-[Editorial Statement.]

Affirmed.

Injuries received by employee of undertaking establishment when he was struck by automobile while waiting for street car on way to funeral parlors in response to instructions which employer had telephoned to him at 6 o'clock in morning held compensable as received " during and by reason of his employment," where such employee had no regular hours but was subject to call by employer at any time.

John W. Bricker, Atty. Gen., R. R. Zurmehly, of Columbus, and Raymond J. Kunkel, of Cincinnati, for plaintiff in error.

D. T Hackett and Jacob Siegler, both of Cincinnati, for defendant in error.

ROSS Judge.

This case is presented on error from the court of common pleas of Hamilton county, wherein judgment was rendered providing for participation by the plaintiff, Timothy Murphy, in the State Insurance Fund. The commission now claims that such judgment is erroneous for the reason that the injuries suffered by the defendant in error were not the result of his employment.

The defendant in error was an employee of an undertaking establishment. His duties required him to do certain work in and about the funeral home, such as acting as a houseman, and trimming caskets. There is also evidence that occasionally he was required to go to hospitals or homes to assist in the conduct of appropriate incidents to the business.

The defendant in error lived some considerable distance from his place of employment, and was, by the terms of his employment required at all times to hold himself in readiness for a call for immediate service. It was necessary that he should at every moment of the day and night keep his employer aware of where he might be reached by telephone, and it was a part of his contract of employment that immediately upon receiving a call he should repair at once to the funeral parlors or such other place as might be designated by his employer. It is obvious that defendant in error had no regular hours of employment.

On the day defendant in error was injured he received a call from his employer at approximately 6:00 a. m. He testified:

‘ 15. Where did you spend the night and the morning of the next day, January 19th? A. Well, that night of course I came home to my own rooms you know, and the next morning is when I got that telephone call when I went to get my breakfast.

‘ 16. What time? A. Well, I judge it was around six o'clock or quarter after six in the morning when I got the telephone call.

‘ 17. From whom? A. Mr. Gilligan, at Gilligan's office.

‘ 18. What order, if any, did you get? A. Be over in a hurry because I was needed, the house had been empty, they had to go on a call.

‘ 19. Be where? A. At the funeral home, 22 W. Ninth.

‘ 20. What did you do after receiving that call? A. I immediately drank my coffee and went over to get the street car, when I was struck by an automobile.

‘ 21. After that, you know nothing? A. Not then, because I was unconscious from that time on for eight weeks. Yes sir, eight weeks I was unconscious.’

It is the contention of the commission that the actual employment of the defendant in...