Noble v. Zimmerman

• Decision Date: 19 December 1957
• Docket Number: No. 29597,29597
• Citation: 146 N.E.2d 828,237 Ind. 556
• Parties: Orvis L. NOBLE and Dorothy Noble, d/b/a Noble-Lincoln Mercury Company, Appellants, v. Evelyn R. ZIMMERMAN, Melvin Louis Zimmerman, Jr., Steven Rae Zimmerman, Michael Lee Zimmerman, Appellees.
• Court: Indiana Supreme Court

Page 828

146 N.E.2d 828

237 Ind. 556

Orvis L. NOBLE and Dorothy Noble, d/b/a Noble-Lincoln Mercury Company, Appellants, v. Evelyn R. ZIMMERMAN, Melvin Louis Zimmerman, Jr., Steven Rae Zimmerman, Michael Lee Zimmerman, Appellees.

No. 29597.

Supreme Court of Indiana.

Dec. 19, 1957.

Rehearing Denied Jan. 29, 1958.

William B. Weisell, Locke, Reynolds, Boyd & Weisell, Indianapolis, for appellants.

Murray, Mannon, Fairchild & Stewart, James L. Murray, Richard W. Guthrie, Indianapolis, for appellees.

LANDIS, Judge.

Appellees, as dependents of the decedent employee Zimmerman, filed application for compensation under the Workmen's Compensation Act, Burns' Ann.St. § 40-1201 et seq., growing out of his death while diving into the lake at the lakeside summer home of his employers after the conclusion of a business meeting had at such summer residence. The Industrial Board granted an award of compensation which was reversed by a divided Appellate Court, the majority opinion appearing in 137 N.E.2d 233, and the dissenting opinion at page 240. The case is now before us on appellee's petition to transfer.

Appellants assert on this appeal that the award was contrary to law as there was no basis in the evidence to support the finding that decedent was injured and thereafter died from an accident arising out of and in the course of his employment.

The hearing before the Industrial Board was tried upon a stipulation of facts, the material portion of which was as follows (Tr. pp. 34-40):

'That on July 14, 1953, Melvin Louis Zimmerman was employed by Noble-Lincoln Mercury Company, an automobile agency in Kokomo, Indiana, at an average weekly wage of $70.00 per week, and had been so employed by said company for six (6) weeks previously thereto, the first five (5) weeks as a mechanic in the Service Department, and the last week as Assistant Manager of the Service Department. In the normal operation of the said automobile agency business it was the custom to hold a meeting approximately once a month of the staff of the Service and Parts Departments after the regular business hours. The usual purpose of said meeting was to improve service and sales of said business. No additional salary or wages were paid to the members of the staff of the Service and Parts Departments for attendance at such meetings. The said automobile agency was a partnership consisting of Orvis L. Noble and Dorothy Noble, general partners.

'That the July meeting was arranged at a Kokomo hotel where dinner would be served and at said meeting discussions concerning points covered at a District Sales Meeting at Cincinnati sometime before was to be carried on. On the morning of Jury 14th, Orvis L. Noble, Managing Partner in said business, changed the meeting place from the hotel to the cottage and summer residence of Orvis L. Noble and his wife Dorothy Noble at Lake Freeman, Indiana, approximately 45 miles from Kokomo, Indiana. The change in the meeting place came about when Jerry Ball, Service Manager, suggested to Orvis L. Noble that because of the heat in town it would be pleasanter to hold the meeting at Lake Freeman and invite the wives and girl friends. The Service Manager, Jerry Ball, the Assistant Service Manager, Melvin Louis Zimmerman, the Parts Manager, Dick Huffman, and the Assistant Parts Manager, Palmer Timmons, were expected to and did attend said meeting, all of them leaving Kokomo, providing their own transportation, after the regular business closing hour of 5:00 P.M. Also invited were the wives or girl friends of the said employees and the girl friend of Jerry Ball did attend as did Evelyn R. Zimmerman, the wife of Melvin Louis Zimmerman. At the time the plans were made to shift the meeting place to Lake Freeman, it was understood by all of those attending that an evening meal would be furnished and served by Mr. and Mrs. Noble after the meeting and there would be an opportunity for swimming and rides in the 17 foot Chris-Craft Cabin cruiser which had been rented by Orvis L. Noble and Dorothy Noble with the cabin. Melvin Louis Zimmerman did take along to Lake Freeman his bathing suit anticipating that he would take advantage of the opportunity to go for a swim.

* * *

* * *

'That the cabin was on a bluff sitting above the lake with the property running down from the front door of the cabin to the lake front. There was a series of stairs leading from the cabin down the hill and more than half way down these stairs there was a landing and step-off onto the roof of the boat house which roof was converted into a sun deck. The stairs continued down the few remaining steps to the level of the pier and the one wall of the boat house laid to the right of said stairs. At the bottom of the stairs the pier ran horizontally, principally to the left along the lake shore, at a level about 1 foot above the water line. To the right of the pier as one faced the lake was the doorway entrance into the boat house. The boat house had a wooden U shaped catwalk on the inside of the boat house on the three sides with no walk on the side facing on to the lake and through which side the boat entered and left the boat house. There was a door on the lake side but this had been partially raised. The boat normally was housed in this dock area within the boat house bounded on the three other sides by the wooden walk.

'* * *. On the previous day he [Orvis L. Noble] had damaged the propeller on the said cruiser in the course of operating his boat, striking said propeller on a rock, and this required the straightening of said propeller by a repair establishment on the lake.

'During the afternoon of July 14, Orvis L. Noble did put the propeller back on the propeller shaft but was not sure that he had installed it properly. All the time he was working on said boat and up to and including the times mentioned herein, the said boat was on a lift in the boat house out of the water, the bow of the boat facing the shore within a few inches of the catwalk on the shore side, and the stern was between 4 to 6 feet inside the partially open lake side of the boat house. The water throughout the area of the boat house was between 2 1/2 and 3 1/2 feet deep. The propeller, while on the said lift was approximately 1 foot above the water level. Inspection of and installation and repair work on the propeller would require that a person stand in the water within the boat house area of the aforesaid depth of 2 1/2 to 3 1/2 feet.

'* * * Mr. Ball and Mr. Zimmerman were delayed by the necessity of calling for the two ladies who were making the trip with them and thereafter all four left Kokomo in Jerry Ball's automobile. Jerry Ball paid the entire expense of his automobile for said trip and neither was reimbursed by Orvis L. Noble, nor was contribution made by Melvin Louis Zimmerman to said expense. When those travelling in Jerry Ball's automobile arrived at the cabin the meeting was already in progress on the sun deck and in fact that part relating to the Parts Department had been completed. Thereupon, Jerry Ball and Melvin Louis Zimmerman joined the meeting and during the next 15 minutes to half an hour the part of said meeting relating to the Service Department was conducted, all of which ended and the meeting broke up at between 7:15 and 7:30 P.M., Daylight Saving Time.

'That after Jerry Ball and Melvin Louis Zimmerman reached Lake Freeman, Orvis Noble related to all the men present at the meeting how he had installed the repaired propeller that day and the difficulties he had had in putting it on principally bacause to get the propeller on and the cotter key in place, he had found it necessary to back the not [sic] off a trifle causing some 'play' or looseness in the propeller attachment. Jerry Ball thereupon suggested that it ought to be checked before they went for a boat ride, to which suggestion Orvis Noble assented. After the meeting broke up, Mr. Timmons and Mr. Huffman went back to the cabin where they had a bite to eat preparatory to making an early departure from the lake.

'* * *. Melvin Louis Zimmerman was going to take a swim to cool off, and since Jerry Ball had blisters on his hands and expressed a preference of not getting in the water and working on the propeller with his sore hands, Melvin Louis Zimmerman told Jerry Ball that he would look at the propeller and fix it if it were necessary. He thereupon changed into his bathing suit inside the boat house, at which time Orvis Noble also was inside the boat house and Jerry Ball was outside the boat house on the pier in the company of the ladies. While Melvin Louis Zimmerman was putting on his bathing suit, he told Orvis Noble that he would look at the propeller and tighten it down if it needed it, to which statement Orvis Noble answered 'Okay'. This was the first information Orvis Noble had that Melvin Louis Zimmerman was going to check the propeller.

'That Melvin Louis Zimmerman did not regard this proposed work on the propeller as one of his duties with Noble-Lincoln Mercury Company, he was not ordered to make such inspection by Orvis L. Noble, Dorothy Noble, or any supervisor of his on behalf of said partnership company, and he, Melvin Louis Zimmerman, regarded his intended work on the propeller as more or less of a friendly gesture to Orvis Noble.

'That after Melvin Louis Zimmerman had put on his bathing suit, he directed an inquiry to Orvis L. Noble while both were inside the boat house, as to the depth of the water. At the time, Orvis L. Noble was standing on the walk at the bottom of the U or along the side of the boat house facing the hill. At said time Melvin Louis Zimmerman was standing on the catwalk inside the boat house along the side adjoining the pier about half way between the ends of said boat house. Melvin Louis Zimmerman moved towards the opening at the end of the boat house facing the lake and inspected said opening. On the side facing the lake the opening extended up from the water line...