C. & E. Trucking Corp. v. Stahl

• Citation: 181 N.E.2d 21,135 Ind.App. 600
• Decision Date: 22 March 1962
• Docket Number: No. 1,No. 19629,19629,1
• Parties: C. & E. TRUCKING CORPORATION, Appellant, v. Jeannette H. STAHL, Sharron Stahl, Jeffrey Cramer, Appellees
• Court: Court of Appeals of Indiana

Page 21

181 N.E.2d 21

135 Ind.App. 600

C. & E. TRUCKING CORPORATION, Appellant, v. Jeannette H. STAHL, Sharron Stahl, Jeffrey Cramer, Appellees.

No. 19629.

Appellate Court of Indiana, Division No. 1.

March 22, 1962.

Rehearing Denied April 30, 1962.

William E. Mills, South Bend, for appellant. Patrick Brennan, Isadore Rosenfeld, South Bend, for appellees.

MYERS, Judge.

This is an appeal from an award of compensation made by the Industrial Board of Indiana to appellees as surviving dependents of one Donald R. Stahl, alleged to have died as the result of injuries arising out of and in the course of his employment with appellant corporation.

The facts may be summarized as follows: Appellant was a trucking company engaged in hauling freight and merchandise to and from different points in Indiana and adjoining states. Its general offices and headquarters were located in the city of South Bend. Donald R. Stahl and his brother, Richard Stahl, were employed by appellant to drive trucks owned by it. On Monday, February 23, 1959, they had been sent to Detroit, Michigan, in separate trucks. After unloading there, they received orders to go to St. Clair, Michigan, wait until morning and then pick up a load of salt at the Diamond Crystal Salt Company. Each brother was driving what is commonly termed a tractor and semi-trailer.

St. Clair is approximately fifty miles north of Detroit. It is a small town, variously described at the hearing as a 'summer resort town,' with a population of around 1,500 to 2,000. The brothers left Detroit around 4:00 o'clock p. m., and arrived there within five to ten minutes of each other, and proceeded directly to the Salt Company premises. This was about 6:00 o'clock p. m. They put their trailers in loading docks and unhitched the tractors, arranging to return and load at 7:00 o'clock the next morning. Leaving Richard's tractor parked in the Salt Company lot, they climbed into the other and drove out of the premises.

Neither of them had anything to eat since breakfast and they wanted a hot meal. The reason they had not stopped along the way was due to the fact that the gates of the Salt Company were closed at 6:30 o'clock p. m. After leaving the Salt Company, Donald drove to a small hotel in St. Clair known as the Murphy Hotel. He and Richard registered there, obtaining a room for the night. After freshening up, they went to a tavern located on the first floor of the hotel, which had no kitchen facilities, but served beer and sandwiches. They stayed there the rest of the evening, playing pool on a miniature pool table and watching television. They each had several hamburger sandwiches and four or five bottles of beer. As Richard testified, they were just 'killing time.' Around midnight, they decided to go out and obtain a hot meal.

They used Donald's tractor for driving purposes. Several restaurants were located in St. Clair, but, according to Richard, they were either not open, did not serve warm meals, or were too fancy for them. They tried to find a particular one, south of St. Clair, on the way to Detroit, but, after making two attempts and not locating it, they finally drove north to Port Huron, a city of about 50,000 population, seven or eight miles north of St. Clair. They stopped at a place in the center of town, known as the Hambone Restaurant, where they obtained meals for themselves. They did not drink anything more of an intoxicating nature.

While there, a policeman came in and requested that their tractor be moved from where they had parked it in front of the restaurant, so that a snowplow could do its work. There had been heavy snow and crews were out plowing the street. Donald moved the tractor into a nearby gas station. Around 3:00 o'clock a. m., they left the restaurant and were returning to St. Clair, by way of Electric Avenue, when the accident occurred.

Richard testified that they came to a part of the highway which was covered with ice, and Donald, who was driving, hit an ice rut and lost control of the tractor, which, first, slid onto and straddled a snowbank and then ran across the road to smash into a tree. The impact threw Donald halfway through the windshield with such force that it killed him immediately.

The Full Board found that Donald sustained personal injury which caused his death as the result of an accident arising out of and in the course of his employment. It further found that at the time of the accident, he was operating a motor vehicle upon a public highway in the State of Michigan; that he was not intoxicated; he was not under the influence of intoxicating liquor; that he was not operating the motor vehicle carelessly or heedlessly in wanton and willful disregard of the rights and safety of others, or without due caution or circumspection and at a speed or in a manner so as to endanger, or be likely to endanger, any person or property. The Board then awarded compensation to appellees.

Appellant's assignment of error is that the award of the Board is contrary to law. It argues that error was committed because the facts conclusively show that Donald's death did not arise out of or in the course of his employment.

It is a well-known maxim of law that if there is any competent evidence to sustain the finding of the Board, it is binding on this court. It is also within the province and the duty of the Board to determine the ultimate facts in the case,

'and, if in determining them it reached a legitimate conclusion from the evidential facts, this court cannot disturb that conclusion, though it might prefer another conclusion equally legitimate.' Lasear Inc. v. Anderson (1934), 99 Ind.App. 428, 433, 192 N.E. 762, 764.

This court has attempted to define what is meant by an accident arising out of and in the course of employment.

In Tom Joyce 7 Up Company v. Layman (1942), 112 Ind.App. 369, 374, 376, 44 N.E.2d 998, 1000, this court said:

"This court has correctly held that an accident occurs in the course of the employment, within the meaning of the Compensation Act, when it takes place within the period of the employment, at a place where the employee may reasonably be, and while he is fulfilling the duties of his employment, or is engaged in doing something incidental to it."

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"Generally, an accident may be said to arise out of the employment, where there is a causal connection between it and a performance of some service of the employment. Causal relation is established when the accident arises out of a risk which a reasonably prudent person might comprehend as incidental to the employment at the time of entering into it, or when the facts show an incidental connection between the conditions under which the employee works and the injury.'

'The phrase 'in the course of' points to the place and circumstances under which the accident takes place and the time when it occurs.

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'Before an injury is in the course of the employment, the employee must be fulfilling the duty of the employment or be engaged in doing something incidental to it. * * *'

In Armstead, Widow, etc. v. Sommer et al., etc. (1956), 126 Ind.App. 273, 276, 131 N.E.2d 340, 342, the following statement is made:

'The words, 'out of', point to the origin and cause of the accident or injury. The words, 'in the course of', to the time, place and circumstances under which the accident or injury takes place. The character of the accident, as conveyed by the words, 'out of', involves the idea that the accident is in some sense due to employment. It must, however, result from a risk reasonably incident to the employment. A risk may be incidental to the employment when it is either an ordinary risk directly connected with the employment, or an extraordinary risk which is only indirectly connected with the employment owing to the special nature of the employment, and...