Soetje & Arnold, Inc. v. Basney

• Decision Date: 19 May 1941
• Docket Number: 27555.
• Court: Indiana Supreme Court
• Parties: SOETJE & ARNOLD, INC., v. BASNEY et al.

34 N.E.2d 26

218 Ind. 538

SOETJE & ARNOLD, INC., v. BASNEY et al.

No. 27555.

Supreme Court of Indiana

May 19, 1941

White, Wright & Boleman and John A. Bachl, all of Indianapolis, for appellant.

Orville W. Nichols, of Knox, for appellee.

SWAIM Chief Justice.

Appellees the widow and minor child of James F. Basney, deceased, filed a proceeding under the Workmen's Compensation Act Burns' 1933, § 40-1201 et seq., Baldwin's 1934, § 16377 et seq., for adjustment of their claim for compensation for the decedent's death, which they alleged resulted from injuries received by him in an accident 'arising out of and in the course of his employment' with the appellant.

The full Industrial Board made a finding that the accident did arise 'out of and in the course of his employment' and made an award to the appellees accordingly. This award was reversed by the Appellate Court on the ground that the evidence did not support the finding.

No question is raised as to the petition to transfer being sufficient to invoke the jurisdiction of this court.

The sole question for our consideration is the correctness of the conclusion of the Appellate Court that there was no evidence to support the finding. In determining this question we must bear in mind that under the law it is the province of the Industrial Board to hear and weigh the evidence, thus determine the evidentiary facts, and from such facts draw reasonable inferences to arrive at the ultimate fact. The finding of the ultimate fact becomes a question of law, for the determination of the court, only in case there is no conflict in the evidence and where there can be only one reasonable inference drawn from the evidentiary facts established by the uncontradicted evidence. Shepherd v. Washington Park Cemetery Ass'n, 1933, 97 Ind.App. 455, 186 N.E. 356.

In the instant case in determining whether the evidence supports the finding that the accident arose out of and in the course of the decedent's employment, we must disregard all evidence which is unfavorable to the finding of the Industrial Board and consider only the favorable evidence and reasonable inferences supporting such finding. Morgan v. United Taxi Co., 1938, 105 Ind.App. 340, 14 N.E.2d 736.

The facts relative to this question as shown by the evidence most favorable to the contention of the appellees and to the finding of the Industrial Board were as follows:

The accident out of which the injuries resulting in decedent's death arose, occurred about 8:30 o'clock P. M. Central Standard time, on September 15, 1939, when the automobile which decedent was driving collided with a railroad flasher signal on state highway number 35 just north of the town of Kingsbury, Indiana. The decedent lived in Knox, Indiana, about twenty miles south of the scene of the accident. On the day of the accident and for about three years prior thereto he had been employed as a salesman by appellant Soetje & Arnold, Inc., a corporation which owned and operated a Ford sales, service and garage business in La-Porte, Indiana. The appellant's place of business had been located in Knox until about a month prior to the accident when it was moved to LaPorte. Under his employment for the appellant decedent sold old and new cars, trucks and parts, solicited service for the appellant's garage, collected and accepted payments on accounts, and solicited tow-in and service business on wrecked automobiles which he discovered on the highway as he was driving about in the vicinity of Knox and LaPorte. He worked in the vicinity of Knox as well...