Business Systems v. Gilfillen, 18026

• Decision Date: 15 June 1950
• Docket Number: No. 18026,18026
• Citation: 92 N.E.2d 868,120 Ind.App. 565
• Parties: BUSINESS SYSTEMS, Inc. v. GILFILLEN et al.
• Court: Indiana Appellate Court

Page 868

92 N.E.2d 868

120 Ind.App. 565

BUSINESS SYSTEMS, Inc. v. GILFILLEN et al.

No. 18026.

Appellate Court of Indiana, in Banc.

June 15, 1950.

Henry Humrichouser, South Bend, for appellant.

Samuel Schulman, South Bend, for appellees.

ROYSE, Chief Judge.

This appeal primarily questions the sufficiency of the evidence to sustain the award of the Full Industrial Board of Indiana that the death of appellees' decedent resulted from an accident arising out of and in the course of his employment with appellant.

The facts as disclosed by the record may be summarized as follows:

Roy Edward Gilfillen was the husband and father of appellees. Appellant's principal office is in South Bend, Indiana. For about one year and a half prior to December 2, 1948 Gilfillen was employed by appellant as an outside salesman. It was his duty to call on customers within a radius of seventy-five to one hundred miles around South Bend. His time was more or less his own. He saw his customers when it was convenient for them to see him. Apellant furnished him an automobile and paid his expenses while he was on the road. He was allowed expenses for entertainment of his customers. He had an entirely free hand in determining what customers he would call on and when he would call upon them.

On Wednesday morning, December 1, 1948, he called one Hugh Bundy (who was appellant's general manager) from the office of a customer in Elkhart, Indiana. He told Bundy he was going to Kalamazoo, Michigan on business for appellant. He said he did not know at that time whether he would stay all night in Kalamazoo or Sturgis where he had to make two calls. He expected to get home about noon Thursday. About 6 p.m. on December 1st he called his wife at their home in South Bend from the hotel in Sturgis. He told her he had made his calls in Kalamazoo and was staying in Sturgis all night to make his calls there the next morning. He told her he was not feeling well and was going to take some aspirin, get a bite to eat, and go to bed. (He was in good health except that in the past year he developed asthma which bothered him in cold weather. He had to use adrenalin for this and carried a hypodermic needle so he could give himself a shot. He had an attack about a week before he took the above mentioned trip).

About 1:30 a.m. December 2nd he checked out of the hotel and told the clerk he could not sleep and felt he was getting a cold, and that he was going home. About two hours later, while driving his car eastward on Road 112 toward Sturgis from the west he collided with a truck loaded with four Packards and was killed. The driver of the truck said he saw Gilfillen approaching and when they were about fifty feet apart he believed Gilfillen was to the right of the center line. The truck driver was as far to the right as it was safe to drive with the load he was carrying. He said about a second before the collision he saw Gilfillen's car was left of the center line of the road. He estimated the speed of Gilfillen's automobile at seventy miles per hour. The road was straight. There was no rain or mist.

Appellant contends that the foregoing facts were not sufficient to sustain the finding of the Board that the death of appellees' decedent resulted from an accident arising out of and in the course of his employment.

In certain types of employment which require a continuity of service by the employee the...