Hunt v. Gutzwiller Baking Co.

• Decision Date: 15 June 1937
• Docket Number: 15953.
• Citation: 9 N.E.2d 129,104 Ind.App. 209
• Parties: HUNT et al. v. GUTZWILLER BAKING CO.
• Court: Indiana Appellate Court

9 N.E.2d 129

104 Ind.App. 209

HUNT et al. v. GUTZWILLER BAKING CO.

No. 15953.

Appellate Court of Indiana, in Banc.

June 15, 1937

O B. Hanger and Denny, Adams, Baker & Orbison, all of Indianapolis, for appellants.

James L. Murray, of Indianapolis, for appellee.

LAYMON Presiding Judge.

This is an appeal from an order of the full Industrial Board of Indiana denying compensation to appellants on their application filed with the board on June 25, 1936, wherein appellants, Frances V. Hunt and Louis Ray Hunt, as dependents of James Eli Hunt, husband and father, respectively, claimed compensation against the appellee on account of an accident resulting in the death of said James Eli Hunt, which accident, appellants contend, arose out of and in the course of the decedent's employment with appellee. The finding and order of the full Industrial Board, omitting the formal parts, is 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 on January 15, 1935, while in the employ of the defendant, at an average weekly wage of $23.27, one James Eli Hunt sustained an injury from which he died on the said date. That at the time of his death the said James Eli Hunt was living with Frances V. Hunt, his wife, and Louis Ray Hunt, his son, who were wholly dependent upon him for support. That on June 25, 1936, the plaintiffs herein filed their application for the adjustment of a claim for compensation.

"And the Full Industrial Board now finds for the defendant on plaintiffs' application that the injury suffered by the said James Eli Hunt, and from which he died was due to shot wounds inflicted by persons unknown; that the death of the said James Eli Hunt was not due to any accidental injury arising out of his employment with the defendant.

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

From the above finding and order by the full Industrial Board appellants prayed and perfected this appeal, assigning as error that the award of the full board is contrary to law, which assignment is sufficient to present both the sufficiency of the facts found to sustain the award and the sufficiency of the evidence to sustain the finding of facts. The evidence, including certain stipulations by the parties, was sufficient and undisputed on all of the essential facts entitling appellants to an award for compensation, and the full Industrial Board so found, save and except the fact as to whether the death of appellants' decedent resulted by reason of an accidental injury arising out of decedent's employment with appellee.

Appellants earnestly contend that the evidence is of such conclusive character as to force a conclusion contrary to that of the Industrial Board and that the judgment of this court should be substituted for that of the board. This contention requires us to review the evidence.

Not in dispute, but pertinent to the subject of inquiry in this appeal, are the following facts: That decedent was employed by appellee under a written contract whereby he was to sell and distribute to customers over a certain designated route appellee's merchandise which consisted of various baked goods; that decedent was required to cover the route daily except Sundays, visit each customer, and supply such customer with his needs for the goods of appellee; that decedent was also required to keep an accurate record of the customers, to account to appellee at the end of each working day for all goods delivered during such day, and to pay over to appellee all moneys collected for such goods; that the title to the merchandise in the possession of decedent was, at all times, to remain the property of appellee, and all moneys collected by decedent were to belong to and to be the property of appellee; and that appellee was to pay to said decedent at the end of each week a sum of money equal to 17 per cent. of the aggregate amount of goods sold and delivered by decedent. That decedent was on friendly terms with a young man by the name of Leesey, who accompanied him on his trip on the day of his death and upon several occasions prior thereto. On January 15, 1935, at about 4 p. m., the decedent, with a bullet hole in his head, was found lying at the side of the road at the intersection of Seventy-First street and Ditch road, a point on his designated route in the territory assigned by appellee to decedent. No firearms were found in the truck or thereabouts. The decedent carried at his side a purse approximately six inches in size attached to a strap which he placed over his shoulder. This purse was found in the driver's seat of the truck, open and empty, except for a marble, and decedent's shoulder strap was unbuckled. One door of the truck was slightly ajar, the front wheels were in the ditch, and the back wheels were on the road. There was blood inside the truck on the floor and on the running board. On the day in question, and before he was found, decedent had called upon several customers and consummated divers sales; the last sale having been transacted shortly before he was found. The evidence disclosed that...