Standard Oil Co. of Indiana v. Allen

• Decision Date: 19 June 1919
• Docket Number: No. 9619.,9619.
• Citation: 123 N.E. 693
• Parties: STANDARD OIL CO. OF INDIANA v. ALLEN.
• Court: Indiana Appellate Court

123 N.E. 693

STANDARD OIL CO. OF INDIANA

v.ALLEN.

No. 9619.

Appellate Court of Indiana, Division No. 1.

June 19, 1919.

Appeal from Circuit Court, Wayne County; H. C. Fox, Judge.

On motion for rehearing. Rehearing denied.

For former opinion, see 121 N. E. 329.

S. D. Miller, F. C. Dailey, and W. H. Thompson, all of Indianapolis, Gath Freeman, of Richmond, and C. C. Shirley, of Kokomo, for appellant.

C. E. Shiveley, Ray K. Shiveley, and Joshua H. Allen, all of Richmond, for appellee.

BATMAN, C. J.

Appellant, in a very able brief on its petition for a rehearing, has pointed out wherein it believes the court erred in its original opinion; but, after a careful consideration of such petition, we are forced to adhere to the conclusion already announced. However, in view of appellant's earnest contention that there is no evidence to sustain the essential finding that the relation of master and servant existed between it and the decedent, at the time he was engaged in making the repairs on its gasoline tank, we call attention to the fact that there is evidence in the record which tends to establish the following: That Jacob Kern was running a small boiler repair shop in Richmond, Ind.; that he employed a few men to assist him in his work, but did not contract; that he could not do all the work that came to him, and he would, at times, furnish men to those who wanted repairs made; that he would render bills for such work, and pay his men therefor, reserving a small portion of the amount received as his compensation; that, on the occasion in question, word was received at his shop that appellant desired some repairs made, and he sent the decedent, who had been working for him for several years, to see what was to be done; that the decedent called at appellant's place of business, and, after ascertaining the nature of the repairs desired, returned to Kern's shop for the purpose of obtaining tools with which to do the work and some one to assist him therein; that the decedent and one Graham, who was also an employé of said Kern, then took certain tools and went to appellant's place of business to make said repairs; that, after making an examination of the tank to be repaired, they reported to appellant's superintendent that it could be repaired in either one of two ways; that the said superintendent then decided how the work should be done, and directed the decedent and said Graham to perform it in that manner; that the decedent then went on the inside of said tank, and on coming out reported that there was still a quantity of gasoline in the same; that appellant's superintendent thereupon directed the decedent and said Graham to drill holes in the bottom of the tank in order that the gasoline might be drawn out before the work proceeded; that, prior to the time the decedent entered the tank, appellant's superintendent procured an electric light globe, attached it to the end of an extension cord, and assisted in connecting it...