Calkins v. Serv. Spring Co. , 15897.

• Decision Date: 22 March 1937
• Docket Number: No. 15897.,15897.
• Parties: CALKINS et al. v. SERVICE SPRING CO.
• Court: Indiana Appellate Court

103 Ind.App. 257
7 N.E.2d 54

CALKINS et al.
v.
SERVICE SPRING CO.

No. 15897.

Appellate Court of Indiana, in Banc.

March 22, 1937.

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by Elva Stephens Calkins and Hugh Ingram Calkins for the death of Percy Calkins, their husband and father, respectively, claimants, opposed by the Service Spring Company, employer. From an order of the full Industrial Board denying an award, claimants appeal.

Award affirmed.

[7 N.E.2d 54]

Pickens, Gause, Gilliom & Pickens and Harry L. Gause, all of Indianapolis, for appellants.

Slaymaker, Merrell & Locke, Clarence F. Merrell, and James V. Donadio, all of Indianapolis, for appellee.

CURTIS, Judge.

This is an appeal from an award of the Full Industrial Board of Indiana growing out of the appellant's application for compensation for the accidental death of Percy Calkins, husband of appellant Elva Stephens Calkins, and the father of appellant Hugh Ingram Calkins, said Percy Calkins being the employee of the appellee, Service Spring Company, and the appellant child being a minor under 18 years of age.

The issues were made by the filing of appellants' application for compensation, to which no special answers were filed.

Omitting formal parts, the finding and award are as follows:

“And the Full Industrial Board having heard the argument of counsel, having reviewed the evidence and being duly advised therein, now finds that sometime during the year 1928 one Percy Calkins and the defendant herein, Service Springs Company, entered into a contract of employment, under the terms of which the said Percy Calkins was to confine his services to several states in the south and the southwest, including the State of Texas. That the wages of the said Calkins would be in excess of $30.00 a week. That the contract of hire did not include any proviso by

[7 N.E.2d 55]

which the said Calkins would be covered by the Indiana Workmen's Compensation Law (Burns' Ann.St.1933, § 40-1201 et seq.). That on March 30, 1935 Percy Calkins was employed by the defendant Service Springs Company. That on March 30, 1935 Percy Calkins died. That at the time of his death the said Percy Calkins was living with his wife, Elva Stephens Calkins, and his son Hugh Ingram Calkins, both of whom were wholly dependent upon him for support.

“That on October 7, 1935, plaintiffs filed their application for the adjustment of a claim for compensation.

“And the Full Industrial Board now finds for the defendant on plaintiffs' application for the adjustment of a claim for compensation, that the Industrial Board is without jurisdiction in the premises.

“Order

“It is therefore considered and ordered by the Full Industrial Board of Indiana that plaintiffs shall take nothing by their complaint herein, and that they shall pay the costs of this proceeding.”

[1] From the above award the appellants in due time prayed and perfected this appeal, assigning among the errors relied upon for reversal the following: “That the final award of the Full Board is contrary to law.” This one assignment is sufficient to present for review all questions sought to have reviewed.

The controlling facts in addition to those contained in the finding are not in dispute and may be summarized as follows: That the appellants' deceased had been in the employ of the appellee for 7 or 8 years, and at no time lived in Indiana; that the appellee was an Indiana corporation with its office in Indianapolis and was engaged in the business of furnishing for sale automobile equipment such as springs and bolts and like products and that the deceased had been their salesman for such products during the time of his said employment; that the contract of employment was an oral one made in Indiana but was to be performed wholly outside of Indiana in what was termed the southwest territory, which included the state of Texas where the deceased lived and five other states; that the said contract of hire did not include any proviso by which the deceased would be covered by the Indiana Workmen's Compensation Law; that the deceased used his own automobile in travelling over his territory taking care of said business for which he was hired and that upon one of his trips on March 30, 1935, he stopped his said automobile along the highway and permitted two “hitch hikers” to ride and that, after riding...