Peski v. Todd & Brown, 9038.

• Decision Date: 20 November 1946
• Docket Number: No. 9038.,9038.
• Citation: 158 F.2d 59
• Parties: PESKI v. TODD & BROWN, Inc.
• Court: U.S. Court of Appeals — Seventh Circuit

158 F.2d 59 (1946)

PESKI v. TODD & BROWN, Inc.

No. 9038.

Circuit Court of Appeals, Seventh Circuit.

November 20, 1946.

Paul E. Reed and Wm. J. Reed, both of Knox, Ind., for appellant.

Paul M. Butler, of South Bend, Ind., for appellee.

Before SPARKS and KERNER, Circuit Judges, and HOLLY, District Judge.

SPARKS, Circuit Judge.

Plaintiff's decedent was killed in a railway crossing accident when the bus, operated by his employer, in which he was a passenger on his way to work, was struck by a train. His administratrix filed suit against the employer for $10,000 for wrongful death. The action was dismissed on motion of the defendant on the ground that the complaint stated no cause of action inasmuch as the accident occurred in the course of employment, and relief was limited to that afforded by the Workmen's Compensation Act of Indiana. From this judgment of dismissal plaintiff appeals.

There is no dispute as to the facts which were stipulated. Decedent was employed at an ordnance plant operated by appellee in LaPorte County, Indiana. Appellee also owned and operated a bus line for transportation of its employees from their residences to the plant. Only employees were entitled to use the buses, and they paid the same fare as was paid on common carriers in the vicinity for the same distance and service. Employees were not required to use the buses provided, and many used other modes of transportation — their own cars, share-the-ride-cars, and other buses. They were not under the control of the employer while traveling on the buses and were not paid for the time spent on them.

The accident which resulted in decedent's death occurred when the bus on which he was a passenger was struck by a train at a crossing where appellant alleged the driver failed to stop, although the train was approaching and had already given an audible signal.

Appellant concedes that if, in fact, her decedent was killed in an accident arising out of and in the course of his employment, her action can not be maintained. She denies, however, that the stipulated facts require that conclusion, as a matter of law, as it was determined by the court in dismissing the action.

The District Court relied upon the case of American Coal Mining Co. v. Crenshaw, 77 Ind.App. 644, 133 N.E. 394, 396. The facts of the Crenshaw case differ from those of the case at bar only in that the transportation furnished the employee was by train owned and operated by an independent railroad under contract with the employer, whereas in the case at bar, the employer itself owned and operated the bus on which the employee was killed. In the Crenshaw case the action was for death benefits under the Indiana Workmen's Compensation Act. After reviewing the authorities, the court stated the rule to be that "where the conveyance for the employees has been provided by the employer, after the real beginning of the employment, whether such conveyance be his own or is one used for his benefit by virtue of a contract with another, the same being in compliance with one of the implied or express terms of the contract of employment, for the mere use of the employees, and is one which the employees are required, or as a matter of right are permitted, to use by virtue of their contract of employment, the employer is liable (under the Compensation Act) * * *."

We have noted the single difference in fact between the Crenshaw case and the one at bar in the ownership and operation of the conveyance for the reason that in the former case, the Indiana court distinguished an earlier case (Vandalia R. Co. v. Stevens, 67...