American Sec. Co. v. Minard

• Decision Date: 09 March 1948
• Docket Number: 17723.
• Parties: AMERICAN SECURITY CO. v. MINARD.
• Court: Indiana Appellate Court

77 N.E.2d 762

118 Ind.App. 310

AMERICAN SECURITY CO. v. MINARD.

No. 17723.

Appellate Court of Indiana, in Banc.

March 9, 1948

Appeal from Industrial Board.

Davis & Schaefer, of Goshen, and Jones Obenchain & Butler, of South Bend, for appellant.

Mehl & Mehl, of Goshen, for appellee.

BOWEN Presiding Judge.

This is an appeal from an award of the full Industrial Board granting compensation to the appellee as the sole dependent of Fred M Minard, who was an employee of the appellant at the time of his death.

The issues were formed by appellee's application for compensation, and an answer filed by appellant alleging that the death of Fred M. Minard did not occur by reason of an accident arising out of and in the course of his employment by the defendant, and a further special answer alleging that such death was a result of a self-inflicted injury which is not before us in this appeal.

The single error assigned is that the award of the full Industrial Board is contrary to law. Appellant by his Propositions, Points, and Authorities claims that the award is based on incompetent hearsay evidence admitted and considered by the Board over the objection of the appellant and that the award is contrary to law in that the evidence fails to support a reasonable inference that the injury arose out of and in the course of his employment.

The facts showed that the death of decedent was caused by a collision between a motor vehicle which he was driving and a New York Central Railroad train; that he was secretary-treasurer and general manager of the American Security Company at Goshen, Indiana, and had charge of the affairs of the company. Minard's work with the company consisted of the matter of making loans, receiving applications, inspecting for loans, effecting collections and doing every thing necessary in connection with such loans. He was furnished a car by the company which he also used for his own pleasure. After business hours, at least two times each week, he went to effect collections, make inspections, or repossess property and his wife accompanied him on many of these trips. The evidence shows that two days prior to the time of his accidental death, he had made such trip in the company of his wife, taking with him the account cards of respective debtors upon whom he called, and on this occasion he tried to find the house of one Charles Ohlwine in or near Millersburg, Indiana.

The alleged hearsay evidence which was admitted and considered by the Board over the objection of appellant and which action is assigned as error consists in part of the testimony of his wife on the occasion of this trip to the Ohlwine home. Her testimony was: 'He said he placed his card which he always carried in the door, which was the same as a notice and if they could not come in, I will have to come back after work for collection.'

The other hearsay evidence, the admission of which over the objection of appellant is assigned as error, consisted of the statements of a friend of decedent, a Mrs. James Pepple, of a conversation had with decedent after 5:30 p. m. on May 17, 1945 which was about an hour prior to the decedent's death. This testimony of Mrs. Pepple was as follows: 'I asked him if Della was home and he said she wasn't; I asked him if he could come for a game of bridge, and he said he had to go on a business drive, and then was going to Nappanee after Mrs. Minard; we always kidded a little and talked to each other. That was all, and I think, if I may say.'

It seems that our courts in the shadowy borderland of exception to the hearsay rule of evidence have laid out a path which is dim, but nevertheless plain enough that we feel constrained to follow it, which make such declarations of the existence of a particular intention made contemporaneous with, or immediately preparatory to, a particular litigated act admissible as evidence, which tends to illustrate and give character to such act. Burr v. Smith, 1898, 152 Ind. 469, 53 N.E. 469; Hinchcliffe v. Koontz, 1889, 121 Ind. 422, 23 N.E. 271, 16 Am.St.Rep. 403; Koenig v. Bryce, 1932, 94 Ind.App. 689, 180...