Lazarus v. Scherer
| Decision Date | 23 January 1931 |
| Docket Number | 14,033 |
| Citation | 174 N.E. 293,92 Ind.App. 90 |
| Parties | LAZARUS v. SCHERER |
| Court | Indiana Appellate Court |
From Industrial Board of Indiana.
Proceeding under the Workmen's Compensation Act by Murray Scherer against Henriette Lazarus doing business as the "Maumee Oil Company," employer. From an award for claimant, the defendant appealed.
Affirmed on condition of remittitur; otherwise, reversed.
Breen & Newkirk and Henry Hasley, for appellant.
This is an action instituted by appellee, Murray Scherer, before the Industrial Board of Indiana for an award of compensation under and pursuant to the provisions of the Workmen's Compensation Act. The appellee asked for $ 198.50 on account of medical care and attention, hospital services and supplies and $ 30 per week for two weeks of total temporary disability. The complaint is in the form adopted and furnished by the Industrial Board of Indiana. Appellee's claim for compensation was submitted for trial before a single member of the board who entered an award in favor of the appellee. The appellant thereafter filed her application for a review before the full board and the board, after a hearing, made an award in favor of appellee.
Appellee alleged in his complaint, in substance, that, on June 7 1929, he received personal injuries by reason of an accident arising out of and in the course of his employment by the appellant in repairing gasoline pumps; that his occupation was that of a repairman; that the nature of the work in which he was engaged at the time of the accident was the repairing of gasoline pumps; that he was drilling in the bottom of the bowl on a gasoline pump with an electric drill, which slipped and caused the gasoline to become ignited; that medical and surgical treatment and hospital services were required but not furnished by appellant; that his face, eyes and hair were burned; that he had not fully recovered; that the extent of his injuries was unknown; that his average weekly earnings prior to his injury were $ 30 that, since his injury, he was earning or able to earn $ 30 per week in some suitable employment; that he had received nothing from appellant for any disability or for medical care and attention or hospital services and supplies; that he claimed $ 198.50 was due him for medical care and attention, hospital services and supplies and $ 30 per week for two weeks total disability, and that notice of his injury was served upon appellant on June 7, 1929.
A resume of the evidence is as follows: Appellant owned and operated in the city of Fort Wayne what is commonly known as a "gasoline filling station." The management of the business was given to one Joe Lazarus. The appellee understood the mechanism of the gasoline pumps so owned and used by appellant. He had worked for a period of four years in the factory which manufactured gasoline pumps of the kind installed in appellant's place of business. Shortly prior to June 7, 1929, appellee was employed by an insurance company to inspect the gasoline pumps of appellant and was in the employ of the insurance company and engaged in his work of inspecting pumps at appellant's place of business when Joe Lazarus asked appellee if he could alter the three gasoline pumps to conform to certain regulations recently issued by the state authorities. The regulations required that all indicators which were on the outside of the glass bowls attached to the pumps should be placed on the inside thereof. Appellee answered that he could make the change on appellant's pumps to conform to the regulations. Nothing was said at the time of the aforesaid conversation or afterwards, as to when the appellee was to go to work, nor the hours he should work, nor the time he should lunch nor when he should quit in the evening. On June 7, 1929, appellee commenced work by removing the indicators and used his own tools, with the exception of a few wrenches and a step-ladder, which he secured at appellant's filling station. He purchased several special bits to use in his electric drill and other parts necessary to make the change, and charged the same to appellant. Nothing was said at any time as to what appellee would charge appellant for making the alteration in the three pumps. Appellee altered two pumps, placing the indicators on the inside thereof, and was engaged in making the change on the third pump when a spark from the electric drill so owned by appellee ignited the gasoline fumes in the glass bowl causing severe injuries to appellee's eyes. He was taken to a hospital, placed under the care of a physician and, 12 days thereafter, returned to appellant's place of business and finished the work. Appellee rendered a statement for 20 hours at $ 1 per hour, which was paid by appellant. The work in the alteration of the pumps was the only work appellee ever performed for appellant.
It also appears in evidence that Joe Lazarus directed appellee as to the pump he desired first altered and how he would like to have the valves of the several pumps arranged; also that, when appellee commenced work on the first pump, and was engaged in drilling through a quarter or half inch of gasoline in the glass bowl with an electric drill, appellant, by Joe Lazarus, suggested that appellee drain the bowl of gasoline.
The Industrial Board found that on July 7, 1929, the appellee was in the employ of the appellant at an average weekly wage in excess of $ 30; and, on said day, appellee received a personal injury by reason of an accident arising out of and in the course of his employment, of which accidental injury the appellant had knowledge but did not furnish medical attention; that appellee was totally disabled for three weeks. An award of compensation was made of $ 16.50 per week beginning on June 15, 1929, for two weeks; that appellant pay the necessary medical, surgical and hospital services for the first 30 days and the costs of the proceeding, including attorney fees.
The appellant most vigorously asserts that the evidence conclusively determines appellee's relation to appellant to be that of an independent contractor and not an employee and, therefore, the finding of the Industrial Board is not sustained by sufficient evidence and the award is contrary to law.
The Industrial Board has found as an ultimate fact that the appellee was in the employ of appellant and if there be any competent evidence to sustain the finding of the board, it is conclusively binding upon the Appellate Court. Bloomington, etc., Stone Co. v. Phillips (1917), 65 Ind.App. 189, 116 N.E. 850.
It is also the law that it is within the province of the Industrial Board to determine the ultimate facts of the case and if, in determining an ultimate fact, the Industrial Board reaches a legitimate conclusion upon the...
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