Standard Oil Co. of Indiana v. Allen

Decision Date18 December 1918
Docket NumberNo. 9619.,9619.
Citation121 N.E. 329
PartiesSTANDARD OIL CO. OF INDIANA v. ALLEN.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Wayne County; Geo. W. Brill, Judge.

Action by Joshua H. Allen, administrator of the estate of Charles Lipscomb, deceased, against the Standard Oil Company of Indiana. Judgment for plaintiff, motion for new trial overruled, and defendant appeals. Affirmed.

S. D. Miller, Frank C. Dailey, W. H. Thompson, W. H. Miller, and C. C. Shirley, all of Indianapolis, and Freeman & Freeman, of Richmond, for appellant.

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

BATMAN, P. J.

This is an action by appellee, as administrator of the estate of Charles Lipscomb, deceased, against appellant, to recover damages sustained by the wife and child of said decedent by reason of his death. It is alleged in the amended complaint that said decedent, while in the employ of appellant, was engaged in making repairs to a gasoline tank, and while so engaged was killed through the negligence of appellant. The acts of negligence charged and relied on by appellee are the failure of appellant to remove the gasoline fumes from the tank before sending said decedent into the same to make repairs thereon; the failure of appellant to provide a proper guard to protect an electric light bulb, which it furnished said decedent for the purpose of lighting the interior of said tank; and the failure of appellant to furnish a proper means of exit from said tank, so that he could safely leave the same without danger of breaking said electric light bulb. The complaint was answered by a general denial, and the cause was submitted to a jury for trial. A general verdict was returned in favor of appellee for $4,250. The jury returned also its answers to certain interrogatories submitted to it. A motion by appellant for judgment thereon was overruled, and judgment was thereafter rendered in favor of appellee on the general verdict. Appellant filed a motion for a new trial, which was overruled, and has assigned the actions of the court in overruling its said motions as the errors on which it relies for reversal.

[1] Appellant contends that the amended complaint on which this cause was tried is drawn upon the theory that appellee's decedent was in the employ of appellant at the time of receiving his alleged injuries, within the meaning of the Employers' Liability Act of 1911 (Laws 1911, c. 88), and that appellant is liable under said act. Appellee concedes this contention, and admits that the cause was tried on that theory. It necessarily follows that unless the relation of employer and employé existed between appellant and appellee's decedent at the time of his alleged injuries the judgment from which this appeal is taken is unauthorized.

[2] Appellant contends that the answers to the interrogatories returned by the jury with its general verdict show that this relation did not exist, and because of such fact the court erred in overruling its motion for judgment thereon notwithstanding the general verdict.

[3] In considering this contention it should be borne in mind that the general verdict must be taken as a finding that the material averments of the complaint are true. The general verdict in this case, therefore, is a finding that appellee's decedent was in the employ of appellant at the time he received his alleged injuries, and this finding must stand unless the answers to the interrogatories are in irreconcilable conflict therewith. Appellant contends that such answers show that appellee's decedent at the time he received his injuries was in the employ of one Jacob Kern, an independent contractor, and are therefore in irreconcilable conflict with the general verdict as to that material fact. In support of this contention it appears to rely chiefly on the following facts disclosed by such answers: That at and prior to the time appellee's decedent was injured at appellant's storage tank, on or about December 23, 1913, one Jacob Kern was the proprietor of a boiler shop in the city of Richmond, and was engaged, among other things, in repairing boilers, oil and gasoline tanks, at his shop and elsewhere, in and near said city; that appellant had no interest in said business at and prior to the time said decedent was injured; that appellee's decedent was an employé of said Kern in his boiler shop and boiler repairing business, and had been such for about 15 years prior to the time he received his alleged injuries; that he was employed by said Kern, and was in his service, under the supervision of appellant, at the time he received his said injuries; that he was sent as an employé of said Kern to make repairs on appellant's gasoline tank in connection with one William Graham; that said decedent was receiving from said Kern, at and prior to his said injuries, 25 cents per hour, time and a half for overtime, holidays, and Sundays; that there was no evidence that appellant had agreed to pay said decedent any amount per hour for the work done by him on the gasoline tank where he was working at the time he was injured; that said Kern rendered a bill for said work to appellant which it paid; that said Kern paid to the widow of said decedent the amount due him as wages, including the amount due him for work done on appellant's said tank; that appellant did not pay any wages to said decedent or to his widow or estate; that said decedent and said Graham selected the necessary tools and appliances for the performance of said work, with the exception of an electric light bulb and rope, and brought the same from the shop of said Kern to appellant's plant on the day in question; that on the morning of said day the said Graham, in the presence of said decedent, suggested to a representative of appellant two methods in which the work in question might be done, and recommended one of them; that the work was done in the manner recommended by said Graham.

[4] It will be noted that the jury found certain facts with reference to the payment of the wages of appellee's decedent for the work done on appellant's gasoline tank. It has been held that the mode of payment is a circumstance in solving the question of whether the relation of master and servant exists, but that it is not decisive. Indiana Iron Co. v. Cray (1897) 19 Ind. App. 565, 48 N. E. 803;Messmer v. Bell, etc., Co., 133 Ky. 19, 117 S. W. 346, 19 Ann. Cas. 1. It will also be noted that certain facts are found relating to the furnishing of tools and appliances for the work from the shop of said Kern.

[5] These facts, however, are nothing more than circumstances to be considered in determining the relation of the parties, and hence are not conclusive. 26 Cyc. 1551; Tiffin v. McCormack, 34 Ohio St. 638, 32 Am. Rep. 408;Steger v. Barrett, 58 Tex. Civ. App. 331, 124 S. W. 174;Adams Exp. Co. v. Schofield, 111 Ky. 832, 64 S. W. 903. It will be further noted that the jury found certain facts, relating to the employment of said decedent by said Kern, at and prior to the time he received his alleged injuries, but there is no fact found in that regard that would preclude the further finding that he was an employé of appellant while engaged in repairing its gasoline tank.

[6] It is well settled that one who is the general servant of another may be lent or hired by his master to another for some special service, so as to become, as to that service, the servant of such third party. The test is whether, in the particular service which he is engaged to perform, he continues liable to the directions and control of his master, or becomes subject to that of the party to whom he is lent or hired. Coughlan v. City of Cambridge, 166 Mass. 268, 44 N. E. 218;Consolidated Fireworks Co. v. Koehl, 190 Ill. 145, 60 N. E. 87;Hasty v. Sears, 157 Mass. 123, 31 N. E. 759, 34 Am. St. Rep. 267; Rourke v. White Moss, etc., Co., 1 L. R. (C. P. D.) 556; Ewan v. Lippincott, 47 N. J. Law, 192, 54 Am. Rep. 148;Green v. Sansom, 41 Fla. 94, 25 South. 332; 12 Am. Law Review, 82. The principle involved in this rule has been recognized and applied in this state. Dehority v. Whitcomb (1895) 13 Ind. App. 558, 41 N. E. 1059; Indiana Iron Co. v. Cray, supra; Parkhurst v. Swift (1903) 31 Ind. App. 521, 68 N. E. 620.

[7] In determining the correctness of a ruling on a motion for judgment on the answers to interrogatories, the court must indulge every presumption in favor of the general verdict, and such answers will be permitted to prevail over it only when the conflict between the two is such that no possible evidence under the issues could reconcile it. Williams v. Lowe (1916) 62 Ind. App. 357, 113 N. E. 471. It is apparent that the evidence might have been such as to the directions given said decedent by appellant with reference to the work in question, and as to its control over him while it was in progress, as to show that the relation of employer and employé existed between them at such time, notwithstanding any and all facts found by the answers to the interrogatories. We must therefore hold that the answers to the interrogatories in regard to such relation are not in conflict with the general verdict.

[8] But appellant contends that, even if it be admitted that the relation of employer and employé existed between appellant and appellee's decedent, its motion for judgment on the answers to the interrogatories notwithstanding the general verdict ought to have been sustained, for the reason that such answers are in irreconcilable conflict with the general verdict on the question of negligence. In support of this contention appellant asserts, in effect, that the answers to the interrogatories show that at the time appellee's decedent received his injuries he was holding the electric lamp by the flexible cord to which it was attached; that he held such cord 12 or 14 inches from such lamp, and was attempting to change it from one hand to the other; that in so doing the lamp...

To continue reading

Request your trial
6 cases
  • Sargent Paint Co. v. Petrovitzky
    • United States
    • Indiana Appellate Court
    • 20 Noviembre 1919
    ...the right to control and direct his conduct.” This test and rule has been applied and followed in many cases. Among them are Standard Oil Co. v. Allen, 121 N. E. 329;Parkhurst v. Swift, 31 Ind. App. 521, 68 N. E. 620;Indiana Iron Co. v. Cray, 19 Ind. App. 565, 48 N. E. 803;Standard Oil Co. ......
  • New York Cent. R. Co. v. Wyatt
    • United States
    • Indiana Appellate Court
    • 26 Julio 1962
    ...relied upon by appellant has been specifically considered and disapproved by the Indiana Appellate Court in the case of Standard Oil Co. v. Allen, Admr., 121 N.E. 329 (reversed on other grounds (1920) 189 Ind. 398, 126 N.E. Also argued by appellant was the lower court's admission of certain......
  • Sargent Paint Company v. Petrovitzky
    • United States
    • Indiana Appellate Court
    • 20 Noviembre 1919
    ... ... 353 SARGENT PAINT COMPANY v. PETROVITZKY No. 9,927 Court of Appeals of Indiana November 20, 1919 ...           From ... Marion Superior Court (100,789); W. W ... 620; Indiana ... Iron Co. v. Cray (1898), 19 Ind.App. 565, 48 ... N.E. 803; Standard Oil Co. v. Anderson ... (1909), 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480; ... Kilroy v ... on the case of Wood v. Cobb (1866), 13 ... Allen (Mass.) 58, where the plaintiff was struck by a wagon ... driven by one Wheeler, whose wagon had ... ...
  • Standard Oil Co. of Indiana v. Allen
    • United States
    • Indiana Supreme Court
    • 31 Marzo 1920
    ...from the Appellate Court under Burns' Ann. St. 1914, § 1394. Reversed, with directions. Superseding opinions of the Appellate Court, 121 N. E. 329, and 123 N. E. 693.Miller, Dailey & Thompson and W. H. H. Miller, all of Indianapolis, C. C. Shirley, of Kokomo, and Freeman & Freeman, of Richm......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT