Chaney v. Roberts

• Decision Date: 11 March 1985
• Docket Number: No. 2-1084A316,2-1084A316
• Citation: 475 N.E.2d 55
• Parties: Jackie CHANEY, Lowell Helton and James Kirkman d/b/a C & H Stone Company, Appellants-Defendants Below, v. Lexie E. ROBERTS, Appellee-Plaintiff Below.
• Court: Indiana Appellate Court

Page 55

475 N.E.2d 55

Jackie CHANEY, Lowell Helton and James Kirkman d/b/a C & H Stone Company, Appellants-Defendants Below, v. Lexie E. ROBERTS, Appellee-Plaintiff Below.

No. 2-1084A316.

Court of Appeals of Indiana Third District.

March 11, 1985.

Robert C. Rupp, Donn H. Wray, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, for appellants-defendants.

William C. Lloyd, Ferguson, Ferguson & Lloyd, Bloomington, for appellee-plaintiff.

STATON, Presiding Justice.

Lexie Roberts was severely injured when the company truck in which he was a passenger struck a telephone pole. At the time of the accident, Roberts' boss, Jackie Chaney, had been driving himself and Roberts home from work. Roberts successfully applied for worker's compensation; the award was adopted by the Industrial Board (Board) with the exception of the cost of living clause. Jackie Chaney and his business partners, d/b/a C & H Stone Company (C & H) appeal this award on the theory that Chaney was not injured in an accident arising out of and in the course of his employment.

Affirmed.

This Court is bound by the Board's factual determinations. IC 1974, 22-3-4-8 (Burns Code Ed.); Overshiner v. Indiana State Highway Com'n (1983), Ind.App., 448 N.E.2d 1245, 1247. Without weighing the evidence, we will consider the evidence most favorable to the Board's decision. Id. Reversal occurs only if the evidence requires a different result. Id.

The facts most favorable to the Board's decision are as follows: In 1978, Roberts was employed by C & H as a salaried supervisor on 24 hour call. At that time, C & H provided a company-owned truck for Roberts' transportation to and from work. In 1979, Roberts purchased a truck to replace the one C & H had provided with the understanding that C & H would provide the gasoline, oil, and maintenance. This truck was treated for all intents and purposes as a company truck: it bore a company insignia on the door, carried the company's maintenance tools, was used routinely to transport other employees to and from work, and fulfilled the company's promise to provide Roberts with transportation to and from work.

Consistent with his employment agreement with C & H, Roberts drove several of C & H's 8 hour employees to and from work. Thursday, September 3, 1981, was no exception. After the normal working day ended at approximately four o'clock Thursday afternoon, Roberts, Chaney and some other employees stayed late at the office which was not unusual. Chaney offered to take Roberts home in his company truck so that employees who had ridden to work with him Thursday morning could take his truck home. They were to leave the truck at an agreed location.

After the card game, Chaney and Roberts went to talk to some company tenants about some problem that had arisen. From there the men stopped at the mill to lock up and then proceeded to the home of Roberts' daughter. After Roberts talked briefly with his daughter, he got back into the truck. Chaney wanted to go to a nearby tavern for a drink; Roberts indulged him and drove to the tavern. Approximately one and one half hours after arriving at the tavern, Roberts was concerned about picking up his unlocked truck. Also, Friday was a normal work day and he had to drive Based upon the above facts the Board made the following findings and conclusions:

others to work. Since Chaney did not leave the tavern when Roberts asked him to leave, Roberts went out to the company truck and fell asleep. Approximately three hours later, Chaney left the tavern and without waking Roberts, drove the truck toward the site where Roberts' truck had been parked. The truck left the road and struck a telephone pole on the passenger side of the truck. Roberts' injuries rendered him a quadriplegic.

"Said Hearing Judge having read the stipulation and Exhibits and having heard the evidence in said cause and having reviewed the file and being duly advised in the premises, now adopts as findings the above stipulation and Exhibits.

It is further found that on September 4, 1981, C & H Stone Company was a general partnership consisting of three general partners, Jackie L. Chaney, Lowell Helton and James Kirkman, and was in the business of fabricating and selling limestone. The principal office of C & H Stone Company was at said time in Monroe County, Indiana.

It is further found that on and before September 4, 1981, plaintiff was in the full-time employ of C & H Stone Company as a supervisor earning $300.00 per week salary and thus in excess of the maximum.

It is further found that since June, 1979, the plaintiff used his own motor vehicle to go to and from work and for duties while at work; that the said motor vehicle had a Company insignia placed on its side and also all maintenance, gasoline and oil was provided by the defendant.

It is further found that the plaintiff's duties were that of a supervisor and the only persons to whom he reported were the partners of the defendant; that in addition, he was to be 'on call' twenty-four hours a day.

It is further found that the motor vehicle operated by the plaintiff was used to transport employees of the defendant to and from defendant's place of employment; the manner in which this was done was by the plaintiff picking up the employees at their residence in the morning and dropping them off after work that evening. This was done as a benefit to employees so that they might save money that otherwise would be expended by them for gasoline.

It is further found that on September 3, 1981, the plaintiff did drive the said motor vehicle to work that morning with the normal employees; that after the normal working hours on said date a number of the employees decided to engage in a poker game at the defendant's place of business.

It is further found that the poker game had become a customary one and was participated in by the partners themselves, and was furnished with alcoholic beverages furnished by the defendant and had become a method used by the defendant to create a good working relationship amongst the employees.

It is further found that on this particular occasion the employees who normally rode with the plaintiff decided not to stay and partake in the game, but decided to drive the plaintiff's motor vehicle back to their homes; that the said fellow employees obtained the permission and approval of both the plaintiff and partner, Jack Chaney, to drive said motor vehicle back to their residence and, in return, Jack Chaney agreed to take the plaintiff back to get his motor vehicle later on that evening.

It is further found...