Standard Oil Company of Indiana v. Allen

• Decision Date: 31 March 1920
• Docket Number: 23,753
• Citation: 126 N.E. 674,189 Ind. 398
• Parties: Standard Oil Company of Indiana v. Allen, Administrator
• Court: Indiana Supreme Court

126 N.E. 674

189 Ind. 398

Standard Oil Company of Indiana v. Allen, Administrator

No. 23,753

Supreme Court of Indiana

March 31, 1920

Rehearing Denied May 28, 1920.

From Wayne Circuit Court; Henry C. Fox, Judge.

Action by Joshua Allen, administrator, against the Standard Oil Company of Indiana. From a judgment for the plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1394 Burns 1914, Acts 1901 p. 565, § 10).

Reversed.

Samuel D. Miller, Frank C. Dailey, William H. Thompson, W. H. H Miller, C. C. Shirley and Freeman & Freeman, for appellant.

C. E Shively, Ray K. Shively and Joshua Allen, for appellee.

Lairy J. Harvey, J., absent.

OPINION

Lairy, J.

Appellee recovered a judgment against appellant in the trial court for damages resulting, as alleged, from the negligence of appellant in causing the death of Charles Lipscomb. Appellant prosecutes this appeal, assigning as error that the trial court erred in overruling its motion for judgment in its favor on the answers to interrogatories, notwithstanding the general verdict, and also in overruling its motion for a new trial.

It is conceded by both parties to this appeal that the complaint on which the action was tried was based on the theory that the injury which caused the death of Charles Lipscomb was suffered by him while he was in the employ of appellant within the meaning of § 1 of the Employers' Liability Act. Acts 1911 p. 145, § 8020a et seq. Burns 1914. It is likewise conceded that the case was tried and the judgment rendered in the trial court on the theory that the defendant was liable under the provisions of that act. As the provisions of that act apply only to cases in which the relation of employer and employe is involved, the judgment in this case cannot stand unless there is evidence to show the existence of such relation.

Appellant asserts that the answers to the interrogatories returned by the jury with its general verdict show that no relation of employer and employe existed between appellant and Lipscomb at the time the latter received the injury which caused his death. If appellant were correct in this assertion the answers to interrogatories would be in direct conflict with the general verdict, which must rest on a finding of the existence of such relation.

The court has examined the facts found by the answers to interrogatories with some care. There is no direct finding that the relation of employer and employe did not exist, nor is it directly found that Lipscomb was not employed by appellant and engaged in its service when the injury occurred. Facts are found by such answers from which it might well be inferred that no such relation existed; but the jury in reaching its general verdict must be presumed to have drawn the opposite inference. Where the facts found by the answers to interrogatories are such as to reasonably justify one or the other of two opposite inferences, one of which would be in harmony with the general verdict and the other of which would be in conflict therewith, the inference drawn by the jury in support of its general verdict will prevail and the general verdict will be upheld. And, even though the facts found by the answers to interrogatories when considered alone were such as to give rise to the single inference that the relation of employer and employe did not exist, and to exclude all other reasonable inferences, still such inference would not be conclusive as against the inference drawn by the jury in support of its general verdict, for the reason that the jury, in drawing the inference on which its general verdict is based, was required to consider not only the facts found by the answers to interrogatories, but all other facts established by the evidence which could form a proper basis for the inference drawn.

It is well settled that all reasonable presumptions are indulged in favor of a general verdict in passing on a motion of this kind; and that, when the apparent conflict between the facts disclosed by answers to interrogatories and the general verdict is such as could be explained and reconciled by facts susceptible of proof within the issues, the court will presume, in favor of the general verdict, that evidence of such facts was before the jury. Pittsburgh, etc., R. Co. v. Lightheiser (1907), 168 Ind. 438, 78 N.E. 1033; McCoy v. Kokomo R., etc., Co. (1902), 158 Ind. 662, 64 N.E. 92; Indianapolis, etc., R. Co. v. Lewis (1889), 119 Ind. 218, 21 N.E. 660. Facts may have been proved within issues formed in the instant case, which, when considered in connection with the facts found by the answers to interrogatories, would justify the inference that the relation of employer and employe existed as alleged in the complaint. For the reasons stated the trial court did not err in overruling appellant's motion for judgment on the interrogatories.

In support of its second assignment of error, appellant takes the position that there is no evidence to show that the relation of master and servant existed between appellant and Lipscomb at the time of the injury on which this action is based. In deciding whether there is evidence to sustain the verdict in the respect mentioned, this court will accept as true the facts found by the answers to interrogatories, even though there may be conflict of evidence as to some or all of the facts so found. Evansville, etc., Traction Co. v. Spiegel (1912), 49 Ind.App. 412, 94 N.E. 718, 97 N.E. 949; Barr v. Sumner (1915), 183 Ind. 402, 107 N.E. 675, 109 N.E. 193. In treating the facts so found as true, the court does not weigh evidence or invade the province of the jury. As to such facts the jury weighed the evidence and decided from a preponderance of the evidence that the facts so found are true. This court simply adopts the conclusion reached by the jury as to the truth of the facts found by the answers to the interrogatories.

The undisputed facts show that appellant company was engaged in operating a filling station at Richmond, Indiana, and that, in connection with the business there conducted, it maintained large tanks, used by it in the storage and distribution of gasoline. At the time Charles Lipscomb was injured he was engaged in repairing one of the gasoline tanks so maintained by appellant for the purpose of stopping a leak therein. After the gasoline remaining in the tank had been drained out by Lipscomb, he went inside of the tank for the purpose of making the repair, taking with him an electric light bulb attached to a socket by a cord. While he was so inside of the tank, holding the cord to which the light bulb was attached in his hand, the bulb came in contact with a pipe or the side of the tank and was broken while the light current was turned on. The spark thus produced ignited the fumes of gasoline inside the tank, and, as a consequence, Lipscomb was so burned as to cause his death.

The facts shown by the answers to interrogatories show that one Jacob Kern was the proprietor of a boiler shop in the city of Richmond, and was, and had been for many years, engaged in the business of repairing boilers, oil tanks and gasoline tanks in his shop and elsewhere in and near the city of Richmond. Charles Lipscomb was an experienced boiler maker and tank repairer, having worked at that trade for about fifteen years, during which time he was employed by Jacob Kern, and on the date of his injury he was employed by Kern as a boiler maker and repairer of oil tanks and gasoline tanks. Lipscomb went to the plant of appellant on the day of the accident, where he was sent as an employe of Kern. Lipscomb and Graham, who was also an employe of Kern, brought with them from the shop of Kern to the plant of appellant all necessary tools for the performance of the work, and all necessary electrical appliances for such work except the electric light bulb which was used in lighting the interior of the tank. At the time of his injury and prior thereto Lipscomb was receiving wages from Kern at the rate of twenty-five cents an hour and time and one-half for overtime, holidays and Sundays. The repairs begun on the day Lipscomb was injured were completed by Graham on the following day. The bill for such repairs was rendered to appellant by Kern, and was...