Vendome Hotel v. Gibson

Decision Date16 May 1952
Docket NumberNo. 18291,18291
Citation122 Ind.App. 604,105 N.E.2d 906
CourtIndiana Appellate Court

Isidor Kahn, Harry P. Dees, Evansville, Kahn, Dees, Donovan & Kahn, Evansville, of counsel, for appellant.

Arthur Griffith, Evansville, for appellee.

ROYSE, Judge.

Appellant here questions an award of compensation to appellee made by a majority of the Full Industrial Board of Indiana.

There is little dispute in the record as to the facts necessary to determine the questions presented. Appellee was employed by appellant as a dishwasher. Her duties were to dry the dishes and do other work around the kitchen. She had to go to the basement to change her clothes. The rest room was in the basement. There was an ice cutting machine there which stood against a wall. On the day in question, when appellee had some slack time she went to the rest room and on her return she went over to the ice machine to get some ice to eat or put in a glass of water. The machine was being operated by her superior. She reached into or onto the machine and three fingers were cut off. Other employees had at various times taken ice from this machine. There was no evidence that any of them had taken ice while the machine was being operated. Appellant had no rules forbidding employees to take ice from this machine. Appellee had never been told by any of her superiors not to do so.

Appellant first contends the award should be reversed because the Board in one of its findings found a disagreement arose between the parties as to the amount of permanent partial impairment, if any, suffered by appellee. It bases this contention on the fact there was no dispute concerning that matter between the parties. However, the Board also found appellee sustained personal injuries arising out of and in the course of her employment with appellant. This was sufficient.

Appellant next contends the evidence conclusively shows appellee's injuries were not the result of an accident arising out of and in the course of her employment. It is its position that althought the injuries occurred in the course of her employment they did not arise out of it. In support of this proposition it says:

'Although it has been held in Indiana that such actions as are necessary to the life, comfort and convenience of a workman while at work, though personal to himself, and not, technically, acts of service, are incidental, and therefore are deemed to have arisen out of his employment, the act of the Appellee in this case in reaching in the ice-shaving machine to get some ice to eat or to put in a glass was not necessary or essential for her life, comfort or convenience, and, therefore, was not incidental to her employment.'

It further says:

'The uncontradicted evidence in this case shows that the Appellee unnecessarily exposed herself to an obviously dangerous machine, which exposure was neither directly nor indirectly connected with her employment, but which exposure to the above peril was purely for the Appellee's own personal gratification.'

In support of these contentions it relies particularly on the following cases: Morgan v. United Taxi Co., Inc., 1938, 105 Ind.App. 340, 14 N.E.2d 736; In re Betts, 1918, 66 Ind.App. 484, 118 N.E. 551; Shepherd v. Washington Parks Cemetery Association, 1933, 97 Ind.App. 455, 186 N.E. 356; Mishawaka Rubber & Woolen Mfg. Co. v. Walker, 1949, 119 Ind.App. 309, 84 N.E.2d 897; Wasmuth-Endicott Co. v. Karst, 1922, 77 Ind.App. 279, 133 N.E. 609; Inland Steel Co. v. Lambert, 1917, 66 Ind.App. 246, 118 N.E. 162; Cassagne v. Snow Hill Coal Corp., 1940, 107 Ind.App. 556, 24 N.E.2d 795.

In Professor Small's Workmen's Compensation Law of Indiana, § 6.15, p. 144, the rule which should guide our decision is stated as follows:

'Such acts as are reasonably necessary to the life, comfort, and convenience of a workman, though personal to himself, and not technically acts of service, may be incidental to service. If so, an accident occuring in the performance of such an act is deemed to have arisen out of the employment.'

This rule has been generally recognized by this Court, our Supreme Court, and a majority of the appellate tribunals of this country. The question presented here is primarily one of fact. Therefore, we should not disturb the finding of the Industrial Board unless the record is such that reasonable men could only reach a conclusion opposite that of the Board. It is with this concept of our duty we proceed to consider the authorities relied upon by the parties.

In the Morgan case, supra, the appellant was a taxi-cab driver and fell as he got out of his cab to get some cough drops for a cold. He died from injuries sustained in the fall. In affirming the action of the Industrial Board in denying compensation on the grounds the accident did not arise out of and in the course of his employment, this court said [105 Ind.App. 340, 14 N.E.2d 737]:

'If decedent had been stepping out of his cab for the purpose of taking on or letting off a passenger when he fell, it might be reasonably said that the accident arose out of and in the course of his employment; but in view of the fact that the evidence shows indisputably that he fell as he stepped out of his cab to get some cough drops, we think it would be unreasonable to hold that the accident arose out of and in the course of his employment.'

While that case could be distinguished from this case, we agree with Professor Small that it is 'badly reasoned' and we disapprove it.

In Re Betts, supra, decided by a divided court, we answered a question from the Industrial Board, which is subject to the same criticism as the Morgan case by Professor Small, and in our opinion the holding in that case has been overruled by implication in several later decisions of this court and the Supreme Court. In our opinion it is not in harmony with the modern trend in such cases.

In the Shepherd case, supra, we held the evidence was such that reasonable men might differ as to whether, under the evidence, the decedent suffered an accidental injury while in the employ of appellee.

In the Mishawaka Rubber & Woolen Mfg. Co. case, supra, the appellee was fishing during his lunch hour. We held there was no relationship to his eating his lunch and going out on the retaining wall to fish; that his fishing trip was not incidental to his work.

In our opinion, there is nothing in the Karst case, supra, to sustain appellant's contention here. In our opinion, this case in principle rejects its contention here.

The facts in the Inland Steel Company case, supra, are clearly distinguishable from those in this case. In that case, in passing on the question of whether the accident arose out of the employment, we held the findings of the Board did not show whether there was a path around the excavation, or some other route the appellee could have taken. In that case there was a rule of appellant that employees were not to ride on the company's engines. There was no finding that appellee did not know of this rule. While in this case there was no rule or order of appellant forbidding its employees to get ice from the machine. The evidence is clear it acquiesced in such conduct. In view of these circumstances, the mandate of this court in that case is significant. It is as follows [66 Ind.App. 246, 118 N.E. 166]:

'Our Workmen's Compensation Act does not specifically direct what shall be the mandate of this court in case of reversal. It is our judgment, however, that the mandate should be regulated by the facts of the particular case. In the case at bar it appears to us that the ends of justice will more nearly be met by directing a rehearing before the board, if appellee desires such rehearing.'

In the Cassagne case, supra, in affirming the award of the Board, we said:

'Having considered all of the evidence, we find that it does not conclusively show that a custom of the employees to ride the 'motors' to the stairway at quitting time was established.'

The appellee herein failed to file an answer brief within the time prescribed by the Rules of the Supreme Court. Subsequently she filed a petition for permission to file a brief. This we must deny. Rule 2-16, Rules of the Supreme Court. At the oral argument she appeared through counsel and discussed several cases which we believe are helpful in deciding this case. Among these are: Holland-St. Louis Sugar Company v. Shraluka, 1917, 64 Ind.App. 545, 116 N.E. 330; National Biscuit Co. v. Roth, 1925, 83 Ind.App. 21, 146 N.E. 410.

In the Shraluka case, supra, the appellee's regular employment was the operation of a centrifugal machine, but on the day of the accident he was ordered by his foreman to go to the third floor for other work. While working there he was told by the employer's chemist he was wanted on the telephone. He started to walk down the stairs to the phone and slipped on the stairs, suffering severe injuries. The Industrial Board awarded compensation. Appellant contended the accident did not arise out of the employment. In affirming the award this court said, 64 Ind.App. at pages 549-550, 116 N.E. at page 331:

'Such acts as are necessary to the life, comfort, and convenience of the workman, while at work, though personal to himself, and not technically acts of service, are incidental to the service; and an accident occurring in the performance of such acts is deemed to have arisen out of the employment. Such acts are regarded as inevitable incidents of the employment, and accidents happening in the performance of such acts are regarded as arising out of and in the course of the employment. From the foregoing propositions it follows logically that an accident to a workman may arise out of and in the course of his employment within the meaning of the statute, even though he be not actually working at the time of the accident.'

In the National Biscuit Company case, supra, the appellant filed a...

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  • Wine-Settergren v. Lamey
    • United States
    • Indiana Supreme Court
    • September 22, 1999
    ...even though they are not technically acts of service to the employer, Evans, 491 N.E.2d at 976; Vendome Hotel, Inc. v. Gibson, 122 Ind.App. 604, 608, 105 N.E.2d 906, 908-09 (1952); Holland-St. Louis Sugar Co. v. Shraluka, 64 Ind.App. 545, 549-50, 116 N.E. 330, 331 (1917). "For example, wher......
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    ... ... 330, 331 (Our emphasis.) This doctrine has been re-affirmed and is still the law. Vendome ... Hotel, Inc. v. Gibson (1952), 122 Ind.App. 604, 105 N.E.2d 906, 106 N.E.2d 464; National ... ...
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