Calkins v. Service Spring Co.

• Court: Indiana Appellate Court
• Citation: Calkins v. Service Spring Co., 103 Ind.App. 257, 7 N.E.2d 54 (Ind. App. 1937)
• Decision Date: 22 March 1937
• Docket Number: 15897.
• Parties: CALKINS et al. v. SERVICE SPRING CO.

7 N.E.2d 54

103 Ind.App. 257

CALKINS et al. v. SERVICE SPRING CO.

No. 15897.

Appellate Court of Indiana, in Banc.

March 22, 1937

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 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."

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 about 40 miles with him, they killed him; that neither of said "hitch hikers" had previously known the decedent or had ever heard of either him or the appellee and not until after his death did they obtain such information; that they robbed him of his personal effects after his death and in that manner obtained the knowledge as to his identity and that he was employed by the appellee; that at the time of his death the deceased had with him a small amount of money, his luggage, and some small samples of bolts and the like and also some of the appellee's advertising matter and a copy of an order for goods which the deceased had previously obtained from a customer and an order book and possibly some other small items used in his business.

The appellants are met with two questions as follows: First, Did the Industrial Board of Indiana have jurisdiction in the premises? Second, Did the evidence show conclusively that the death of the appellants' decedent resulted from an accident arising out of and in the course of his employment?

The board found that it did not have jurisdiction and, if that finding is correct, then it would be useless for us to proceed to determine the second question. The appellants recognize this fact in their brief when they say, "Logically the extraterritorial question involving the jurisdiction of the board should be treated first." We agree with the appellants in that respect and now proceed to determine that question.

The question as to what extraterritorial application should be given to Workmen's Compensation Laws has been a difficult and troublesome question both in England and in the states of this country where it has been before the courts. It is doubtful if it can be said that there has been what would approach to be substantial harmony in the decisions. This, however, we believe has been mainly the result of unlike provisions or the lack of any provisions in some of the various acts in relation to extraterritorial application. See Schneider on Workmen's Compensation Law, § 47, in both the original work and in each of the four supplementary volumes under the same section.

The direct provisions of the Indiana Workmen's Compensation Act touching upon this question are sections 2, 4, and 20 of the act which we set out as follows:

Section 40-1202, Burns' 1933, section 16378, Baldwin's Ind.St.1934: "From and after the taking effect of this act, every employer and every employee, except as herein stated, shall be presumed to have accepted the provisions of this act respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment, and shall be bound thereby, unless he is hereby authorized so to do and shall have given prior to any accident resulting in injury or death notice to the contrary in the manner herein provided. This act shall not apply to railroad employees engaged in train service." Section 2.

Section 40-1204, Burns' Statutes 1933, section 16380 Baldwin's Ind.St.1934: "Every contract of service between any employer and employee covered by this act, written or implied, now in operation or made or implied prior to the taking effect of this act, shall, after the act has taken effect, be presumed to continue; and every such contract made subsequent to the taking effect of this act shall be presumed to have been made subject to the provisions of this act: Unless either party, except as provided in section eighteen, * * * shall give notice, as provided in section three, * * * to the other party to such contract that the provisions of this act other than sections...