Emmons v. Wilkerson, 17948

• Decision Date: 27 December 1949
• Docket Number: No. 17948,17948
• Parties: EMMONS v. WILKERSON et al.
• Court: Indiana Appellate Court

Page 296

89 N.E.2d 296

120 Ind.App. 100

EMMONS v. WILKERSON et al.

No. 17948.

Appellate Court of Indiana, in Banc.

Dec. 27, 1949.

William P. Dennigan, Vincennes, for appellant.

Crawford & Crawford, Terre Haute, for appellees.

BOWEN, J.,

This is an appeal from an award of the Full Industrial Board denying compensation for temporary total disability for injuries sustained by appellant. Issues were formed on appellant's application for compensation and a general denial for appellees. The hearing member found in favor of appellant, and on appeal to the Full Industrial Board, the board made a finding and award that the appellant was in the employment of the appellees at an average weekly wage of $27.69; that appellant sustained personal injuries by reason of an accident on the date alleged in appellant's application, but that said accident did not arise out of and in the course of appellant's employment with the appellees. The board found for the appellees and against appellant on his application for compensation.

Errors assigned for reversal are that the award of the Full Industrial Board is contrary to law and is not sustained by sufficient evidence. Appellant's assignment of error questions the finding and award of the Full Industrial. Board that the accidental injuries sustained by appellant did not arise out of and in the course of his employment with appellees.

In passing upon appellant's assignment of error, we must disregard all evidence which is unfavorable to the finding of the Industrial Board and consider only the favorable evidence and reasonable inferences supporting such finding. With this rule in mind and considering the evidence most favorable to appellees, there was evidence in the record from which the Industrial Board could have properly found the following facts: That the accident, out of which the injuries resulted to appellant, occurred some time after 11:30 p. m. or 12:00 midnight while the appellant was driving alone in his automobile toward his home which was located ten miles south of Vincennes, Indiana, after a sales meeting at his employer's place of business in the City of Vincennes, Indiana. The accident occurred about seven miles south of Vincennes, when a man named Carl Rosenberg driving an automobile in the opposite direction toward Vincennes crossed the center line of the highway, and drove into the car of appellant, causing him serious injuries. Keith Emmons, appellant in this case, was employed by appellees, Robert and Mildred Wilkerson, partners, who were engaged in the business of selling auto parts, which business was conducted at 402 North Seventh Street in the City of Vincennes, Indiana. The appellant was employed by appellees in accordance with the G. I. Bill of Rights Program under which contract of employment, the appellees were to pay him $120 per month and the United Stated Government $80 per month. He was employed as a stockman or counter man, but his duties consisted of checking merchandise and delivering merchandise over the City of Vincennes, Indiana; that he was to also take orders and make delivery of auto parts outside of the City of Vincennes, Indiana. The appellees held sales meetings in their place of business, which meetings were held as often as the management saw fit, and at least one a month, to train their employees under the G. I. Bill of Rights Program in salesmanship. The appellant was required by the management to attend these sales meetings. There was such a meeting called in the employer's place of business on the night that appellant suffered the accidental injuries. This meeting began about 8:30 p. m. and ended some time between 11:30 p. m. and 12:00 midnight. After the meeting was over, the appellant started home in his car and suffered the accidental injuries as heretofore related herein. On the subject of appellant's activities at the time that he sustained the injuries in question he testified as follows:

'Q. And after the meeting adjourned there was nothing for you to do but go home? A. There was nothing to do but go home, right sir.

'Q. And at the time then that this accident happened you were on your way home? A. Yes, sir.

'Q. Simply for your night's rest? A. Yes, sir.

'Q. The same as if you had been on your way for supper or lunch in the daytime, were you? A. For my night's rest, yes, sir, I was on my way home.

'Q. You had no mission or duty of any kind for the employer to perform after twelve o'clock at night on the 9th of June and at the time you had this accident, did you? A. No, sir, after I left the meeting I was free until eight o'clock the next morning.

'Q. You had no mission or duty for the employer at the time of this street auto accident on the morning of June 9th? A. No, sir.'

The appellee, Robert Wilkerson, testified as follows:

'Q. Now, referring to the night of this sales meeting that you have described, Mr. Wilkerson, it adjourned some where around eleven thirty, twelve o'clock? A. Yes.

'Q. Tell the Board whether or not after that meeting adjourned that night Mr. Emmons had any duty of any character, whatsoever, to perform for the employer until eight o'clock the next morning, the regular working hour? A. No, he didn't.

'Q. And did he have any duties that would require him to attempt to sell products that you handle after midnight on a country road seven miles south of town? A. I would say ordinarily that if the occasion presented itself to sell, it would have been all right, it wasn't expected.

'Q. Was he directed to go down there on this road on his way home and attempt to sell your products that night that he was injured? A. No, sir.

'Q. You wouldn't expect him to find customers on his road home on a country highway after midnight, would you? A. It would be unusual.

'Q. You wouldn't expect it, would you? A. No.

'Q. You wouldn't direct him to try to search out customers after midnight on a country highway, would you? A. It wouldn't be expected.'

The question involved in this appeal is whether under the above circumstances the appellant sustained personal injuries which arose out of and in the course of his employment. Whether or not an employee being injured in an accident, in going to or from the place of his employment, sustains accidental injuries which can be said to arise out of and in the course of his employment depends upon the...