DeMichaeli and Associates v. Sanders

Decision Date28 January 1976
Docket NumberNo. 2--474A89,2--474A89
Citation340 N.E.2d 796,167 Ind.App. 669
PartiesDeMICHAELI & ASSOCIATES, d/b/a the Cattlemen's Restaurant, and the Travelers Insurance Company, Appellants-Defendants below, v. Beulah SANDERS, Appellee-Plaintiff below.
CourtIndiana Appellate Court

John T. Rocap, Bruce M. Pennamped, Rocap, Rocap, Reese & Young, Edwin J. Bunny, Indianapolis, for appellants.

Michael J. Tosick, Greenfield, for appellee.

BUCHANAN, Presiding Judge.

CASE SUMMARY

Defendants-Appellants, DeMichaeli & Associates, d/b/a The Cattlemen's Restaurant and The Travelers Insurance Company (DeMichaeli), seek review of an affirmative Award by the Full Industrial Board of Indiana (the Board) in favor of Plaintiff-Appellee, Beulah Sanders (Sanders), granting compensation for the death of her husband, Charles Sanders (the Decedent), claiming the Findings of Fact were not specific enough for intelligent review, the Award was not supported by sufficient evidence, and erroneous rulings by the Board on certain questions asked during the hearing.

We reverse.

FACTS

The facts and evidence before the Board most favorable to Sanders are as follows:

On May 16, 1972, the Decedent died as a result of injuries sustained in a two-car accident at the intersection of County Road 600 West (also known as the Mount Comfort Road) and County Road 100 North in Hancock County, Indiana. The Decedent was employed by DeMichaeli as a dishwasher and was enroute to DeMichaeli's office and warehouse located in Indianapolis, Indiana, at the time of the fatal accident.

On August 28, 1972, Sanders filed a Form 10 Application for Compensation with the Board. DeMichaeli responded with a General Denial and Special Answer which in part denied 'that Plaintiff's decedent was injured in an accident arising out of an in the course of his employment with the Defendant' and further alleged 'that no compensation should be allowed Plaintiff, as prayed for in her Form No. 10 Application for the reason that the alleged accident and alleged injuries received by Plaintiff's decedent on May 16, 1972, were proximately due to the commission by Plaintiff's decedent of a misdemeanor in violation of law.'

The parties entered into a stipulation which in part read:

'That Charles L. Sanders died on May 16, 1972, as the result of injuries sustained in an automobile accident, which accident occurred at the intersection of County Roads 600 West and 100 North in Hancock County, Indiana; and that County Road 600 West is also known as the Mount Comfort Road.

'That prior to his death plaintiff's decedent was treated by doctors and was admitted to Hancock County Hospital and his final medical amounts to $208.05; that funeral and burial expenses exceeded the statutory maximum.

'That on May 16, 1972, plaintiff's decedent had been sent on an errand by his employer from his place of work in Hancock County to an office and warehouse owned and operated by the defendant in Indianapolis, Indiana, in the vicinity of 25th and Bolton; that plaintiff's decedent left his place of employment on the instruction of his supervisor in his own automobile, and took what could be considered an alternate direct route to his destination.

'That the accident resulting in plaintiff's decedent's death occurred at approximately 10:45 A.M. on May 16, 1972.

'That prior to the accident at the intersection previously mentioned the plaintiff's decedent was traveling west on County Road 100 North and a person by the name of Betty L. Estes was traveling north on County Road 600 West, also known as Mount Comfort Road; that the intersection of County Road 100 North and 600 West was regulated by stop signs for the east-west traffic and that traffic on County Road 600 West, also known as Mount Comfort Road, had the right-of-way and did not have to stop at the intersection.

'That the defendant had notice of the accident and death of plaintiff's decedent by actual knowledge on May 16, 1972.'

At the hearing Jerry L. Owens, the investigating officer, testified that not only was the Decedent required to stop and yield the right of way, but below each stop sign on County Road 100 North on which Decedent was traveling was a warning sign stating that cross traffic (travelers on County Road 600 West . . . Estes) does not stop. Owens further testified that the speed limit on County Road 600 West was 55 miles per hour and that judging from the point of impact, the front wheel of Estes' car was across the center line of County Road 600 West at the time of collision.

Betty L. Estes (Estes) testified at the hearing that she approached the intersection at approximately 45 miles per hour headed north on County Road 600 West and that she first observed the Decedent's car 'quite a ways away from the intersection' because of the flat terrain. She also testified that she watched the Decedent's car until just before reaching the intersection, only looking away at that point to see if there were any oncoming cars. Although Estes did not observe the Decedent stop at the intersection, she only focused her attention away from his car after she thought he was stopping because as she stated, 'his car bow(ed) like he hit the brakes.'

The only other evidence relevant to the collision was Estes' answer to a hypothetical question posed by Sanders in which Estes testified that if she had known what was going to happen, i.e., that the Decedent was going to proceed into the intersection, at the point in time when she focused her attention away from the Decedent's car, she could have possibly avoided the collision.

On December 20, 1972, the Hearing Member awarded compensation to Sanders and DeMichaeli filed a Form 16 'Application for Review by the Full Board'. Thereafter, on March 22, 1974, the Board entered the following Findings of Facts:

'That on October 22, 1973, the defendant, by its attorney, EDWIN J. BUNNY, filed its Motion to Ruturn Cause for Hearing Before a Single Hearing Member to Permit a Witness to Answer Questions on Direct Examination which Motion is in the following words and figures, to-wit:

(H. I.)

and which Motion is hereby denied.

'That on the 16th day of May, 1972, plaintiff's decedent, Charles L. Sanders, was employed by the defendant, DeMichaeli and Associates d/b/a The Cattlemen's Restaurant; that the decedent's average weekly wage was in excess of the maximum.

'It is further found that the plaintiff, Beulah Sanders, was on the 16th day of May, 1972, the wife of the decedent by legal marriage in that on the aforesaid date she was the sole and only dependent of the said decedent.

'It is further found that the decedent died on May 16, 1972, as a result of injuries sustained in an automobile accident, which accident occurred at the intersection of County Road 600 West and County Road 100 North in Hancock County, Indiana.

'It is further found that prior to his death, plaintiff's decedent was treated by doctors and was admitted to the Hancock County Hospital; that the medical expenses totaled $208.05; that the funeral and burial expenses incurred as a result of the decedent's death exceeded the statutory maximum;

'It is further found that the decedent had been, on the 16th day of May, 1972, sent on an errand by his employer from his place of work in Hancock County and that the plaintiff's decedent left his place of employment upon the direct instruction of his supervisor in his own automobile and traveled what could be considered an alternate direct route to his destination;

'It is further found that the accident resulting in Plaintiff's decedent's death occurred at approximately 10:45 A.M. on May 16, 1972; that the defendant had notice of the accident and death of the plaintiff's decedent by actual knowledge on May 16, 1972.

'It is further found that prior to the accident at the intersection previously mentioned, the plaintiff's decedent was traveling west on County Road 100 North and a person by the name of Betty L. Estes was traveling north on County Road 600 West, also known as Mt. Comfort Road; that the intersection of the said county roads 100 North and 600 west were regulated by stop signs for the east/west traffic and that traffic on County Road 600 West had the right-of-way and do not have to stop at the intersection.

'It is further found that Betty L. Estes did not see or remember seeing decedent failing to stop at the stop sign governing the preferential road and last reported observing the decedent's automobile as it approached the aforementioned intersection.

'It is further found that Betty L. Estes' last observation of the decedent's automobile indicated to her that the car was braking for the intersection.

'It is further found that, thereafter, Betty L. Estes ceased observation of the decedent's automobile and, thereafter, the collision occurred as previously found.

'It is further found that an inference does exist that the decedcent did not stop his vehicle at the posted stop sign at the intersection or, if he did stop, he did not grant the right-of-way to the vehicle driven by Betty L. Estes but this is only an inference and the commission of a misdemeanor was not established by the evidence.

'It is further found that notwithstanding the evidence relating to the commission of a misdemeanor, the deendant has failed to prove that this misdemeanor, even if shown, proximately caused the decedent's death.

'The Full Industrial Board now finds for the plaintiff and against the defendant on plaintiff's Form 10 Application filed herein on August 28, 1972.' (Emphasis supplied)

DeMichaeli appeals.

ISSUES

The issues on appeal requiring disposition are: 1

ISSUE ONE Were the Findings of Fact sufficiently specific to permit an intelligent judicial review of the Board's decision?

ISSUE TWO Was the Board's Award contrary to law because DeMichaeli sustained his burden of proof that the Decedent's death was due to his commission of a misdemeanor in failing to stop or yield the right of way?

As to ISSUE...

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