Nordyke & Marmon Co. v. Swift

• Decision Date: 27 May 1919
• Docket Number: No. 10491.,10491.
• Citation: 71 Ind.App. 176,123 N.E. 449
• Court: Indiana Appellate Court
• Parties: NORDYKE & MARMON CO. et al. v. SWIFT et al.

71 Ind.App. 176

123 N.E. 449

NORDYKE & MARMON CO. et al.

v.SWIFT et al.

No. 10491.

Appellate Court of Indiana, Division No. 1.

May 27, 1919.

Appeal from Industrial Board.

Proceedings by Grace E. Swift and others, under the Workmen's Compensation Act, to obtain compensation for the death of George E. Swift, deceased, opposed by the Nordyke & Marmon Company, the employer, and the Indiana Manufacturers' Reciprocal Association. There was an award, and the employer and the Reciprocal Association appeal. Award affirmed and increased.

Joseph W. Hutchinson, of Indianapolis, for appellants. White & Jones, of Indianapolis, for appellees.

BATMAN, C. J.

The record in this case discloses that appellees are the widow and children of one George E. Swift, deceased, who met his death while in the employ of appellant Nordyke & Marmon Company. Appellees on September 28, 1918, filed with the Industrial Board of Indiana an application for the adjustment of their claim for compensation. Appellants appeared thereto and joined issues thereon. After a hearing and an award by a single member of said board, and a review thereof by the full board, a finding was made which contained, among others, the following facts: That on September 5, 1918, George E. Swift was in the employ of appellant company as a janitor foreman; that for several months prior to said date there were 35 or 40 employés of said company in the janitor force, who worked under the said George E. Swift, and were subject to his orders; that for the purpose of cleaning the floors, and especially the aisles, in the buildings of said company, the said force of janitors had been in the habit of using dirty gasoline, that is, gasoline that had been used for the purpose of cleaning machines; that on said date, while the said George E. Swift was preparing to procure clean gasoline, with which to clean the floors in the buildings of said company, by drawing the same from a tank containing 30,000 gallons, he took hold of an electric wire for the purpose of attaching it to a bucket with which to draw gasoline from said tank; that he accidentally took hold of a socket attached to said wire, thereby receiving an electric shock which caused his death on said date; that about the middle of July, 1918, some officer of the United States government had called the attention of said company to the fact that it was desirable to conserve the supply of gasoline, and requested that its use be discontinued for all unnecessary purposes; that soon thereafter an organization in the plant of said company, known as the fire board, passed a resolution requesting a discontinuance of the promiscuous use of gasoline, and issued a written order to that effect, but the evidence does not show that the written order was ever called to the attention of the said George E. Swift; that said order was made for the purpose of conserving the supply of gasoline, and not as a safety measure; that the janitor force did not discontinue the use of gasoline for the purpose of cleaning the floors after the passage of said resolution by the fire board until after the death of the said George E. Swift, but the evidence does not show whether clean gasoline had ever been used by the said George E. Swift and the janitors working under him on any previous occasion. There is also a finding:

“That his [Swift's] attention was verbally called to the fact of the request of the federal government by at least two representatives of the defendant company, and one representative of the defendant company had suggested to him on one occasion that the use of gasoline for the purpose of cleaning the floors should be discontinued; *** that the evidence does not show that the defendant company ever took any steps to require the discontinuance of its use for that purpose.”

On the facts found the full board made an award in favor of appellees, from which this appeal is prosecuted.

[1][2][3] Appellants contend that the evidence is not sufficient to sustain that part of the finding quoted above. In support of this contention they cite the adoption of the resolution by the fire board, and the statements made to the decedent with reference thereto, by two other members of appellant company. O'Hara and Hardwick, whereby it is claimed that the decedent was directed to discontinue the use of gasoline in cleaning floors, instead of being given a mere suggestion in that regard. The evidence with reference to the adoption of the resolution by the fire board tends to show that it merely provided that the promiscuous use of gasoline should not continue; that it was adopted for the purpose of conserving gasoline in pursuance of a suggestion from the United States government, and not as a safety measure. There is no evidence that the use of gasoline for cleaning floors was mentioned therein, or that it was intended thereby to prohibit its use for such purpose. In fact, it would be reasonable to infer the contrary, in view of the fact that the gasoline used for such purpose, was gasoline which had been previously used in cleaning machines, and had thereby become dirty. Under these circumstances it is not reasonable to presume that the conservation of such gasoline was covered, either by the suggestion of the government, or the resolution of the Fire Board adopted in pursuance thereof. It appears from the evidence that after the adoption of said resolution the employés named above made certain statements to the decedent with reference thereto, and to the use of gasoline for cleaning floors. Any statement made by said O'Hara may be disregarded in this connection, as the uncontradicted evidence shows that he had no control over the decedent, or his work in cleaning the floors, and that the decedent was in no way bound by what he may have said about the use of gasoline for that purpose. As to the employé Hardwick the evidence shows that he was a member of the fire board, but this fact is not significant, as it is apparent that the scope of a resolution cannot be enlarged beyond what reasonably appears...