In re Raynes

• Decision Date: 21 December 1917
• Docket Number: No. 10064.,10064.
• Citation: 118 N.E. 387,66 Ind.App. 321
• Parties: In re RAYNES.
• Court: Indiana Appellate Court

66 Ind.App. 321

118 N.E. 387

In re RAYNES.

No. 10064.

Appellate Court of Indiana, Division No. 2.

Dec. 21, 1917.

Proceedings for compensation under the Workmen's Compensation Act by Bert F. Raynes as employé against the Staats-Raynes Company, employer. Certified questions by the Industrial Board. Answered.

CALDWELL, J.

The material facts as certified by the board are, in substance, as follows: December 25, 1916, and for several years prior thereto the Staats-Raynes Company was a merchandising corporation organized with a capital stock of $15,000. It was engaged in the sale of merchandise, including hardware, jewelry, and miner's supplies at Clinton, Vermillion county. There were but three stockholders, Bert F. Raynes, being one of them. The stockholders constituted the board of directors. On said day, and for several years prior thereto, Bert F. Raynes was secretary treasurer of the company, and in addition to performing the regular duties of that office he served also as buyer for the company, as a salesman in the store and as collector of its accounts. The company paid him for his services $50 per week. Prior to said date many of the customers of the company who had resided in and near Clinton had removed to Terre Haute and West Terre Haute, leaving unpaid accounts for goods purchased by them of the company. For some time prior to December 25, 1916, Bert F. Raynes had been in the habit of making occasional trips to Terre Haute and West Terre Haute for the purpose of collecting moneys due from such persons to the company upon their said accounts, which trips were made at the expense of the company, in the sense that it paid the transportation charges. On such prior trips he had learned that many of such debtors of the company frequented the lobby of the Terre Haute Hotel and the bar thereof. At 2 o'clock p. m. on the 25th day of December, 1916, he took ten or more statements of accounts of such persons and went to Terre Haute by interurban, for the purpose of collecting such accounts. Arriving in Terre Haute, he went directly to the lobby of the Terre Haute Hotel, and to the bar thereof which was open. From 3 o'clock until 6 o'clock he remained in and about the lobby and barroom of the hotel, except a short period of time during which he went to West Terre Haute, a distance of two miles, to see a person owing one of the accounts he had taken with him. Not finding such person at home, he immediately returned to the Terre Haute Hotel. Between 3 o'clock and 6 o'clock p. m. of that day he saw in the lobby of the hotel and in the barroom thereof several of the persons whose accounts he had taken with him to said city for collection, interviewed such persons, and endeavored to make collections from them. Within such time he also interviewed an attorney in the barroom relative to placing the accounts in his hands for collection. After 6 o'clock he left the hotel, got his supper at some point which he claims he does not remember, and thereafter and between 6 o'clock and 11 o'clock p. m. he visited the Elks Club, another hotel, and also spent a portion of such time in the lobby and barroom of the Terre Haute Hotel. He claims that he does not remember what other places he visited within such time. While in Terre Haute on this occasion he drank several glasses of beer. The last interurban car leaving Terre Haute for Clinton on said date left Terre Haute at 11 o'clock p. m. Soon after that hour he discovered that the last interurban had departed for Clinton, and he then made arrangements with a taxicab driver to drive him by automobile to Clinton. In such automobile he left the Terre Haute Hotel about 11:30 o'clock. The driver proceeded north a short distance, and then stopped at a garage to get some gasoline. Bert F. Raynes thereupon got out of the automobile into the street for the purpose of permitting the driver to alight therefrom. Immediately after he stepped into the street, and while standing about three feet from the automobile in which he had been riding, he was struck by an automobile driven by a third party, and as a consequence he was severely injured, his injuries being permanent, and resulting in total disability for six months.

On the facts, the board seeks the opinion of this court on three questions of law, in substance as follows: Assuming that Bert F. Raynes was an employé of the company within the meaning of the Compensation Act: (1) Did the accident resulting in the injury occur in the course of his employment? (2) Did the accident arise out of his employment? (3) Upon the facts was Bert F. Raynes at the time of his injury an employé of the company within the meaning of the Workmen's Compensation Act?

[1][2] As bearing on the first and second questions, the certified statements contains a number of evidentiary facts from which the board has not deduced the ultimate facts essential to a direct answer to these questions. There is a statement that on the occasion involved here, Bert F. Raynes went to Terre Haute for the purpose of collecting accounts due the company. This statement is an ultimate fact. If to collect such accounts were his exclusive purpose, then in going to Terre Haute he was discharging the duties of his employment. Perhaps the same conclusion would follow if such was his principal purpose. If, however, he was moved by other purposes which he carried out, the collecting of accounts being a mere incident, then we do not believe that it can be said that he was engaged in discharging the duties of his employment. The facts stated respecting his subsequent movements in visiting hotels, barrooms, clubs, and unremembered places are for the most part but evidentiary of important ultimate facts not deduced or certified. In such subsequent movements was he actuated by a purpose to serve his employer, and was he devoting his time and efforts to that end, or chiefly to that end, or was he in the main merely seeking his own pleasure in whiling away a holiday afternoon, with a secondary object of collecting accounts if he might conveniently do so without materially detracting from the pleasure of the occasion? If he went to Terre Haute to further the interests of his employer, did he subsequently lose sight of such object that he might become the devotee of conviviality? What caused him to miss the last car, and what gave rise to the necessity of his endeavoring to procure transportation from Terre Haute in a taxicab? Did he miss the car and did such necessity arise because he had been diligently engaged in his employer's business, and because he was unable to complete such business before the last car left, or was it because the sociabilities of the occasion caused him to become oblivious to lapsing time and passing events? These are questions of ultimate fact which it is the province of the board rather than this court to deduce. In the one case, it is our judgment that the accident arose out of and in the course of the employment. The following have a bearing: In re Charles Harraden, 118 N. E. 142, No. 10087, this term; Pierce v. Provident Clothing Co., 4 B. W. C. C. 242; McNeice v. Singer, etc., Co., 4 B. W. C. C. 351; Kunze v. Detroit, etc., Co., 192 Mich. 435, 158 N. W. 851, L. R. A. 1917A, 252;Mahowald v. Thompson-Sterrett Co., 134 Minn. 113, 158 N. W. 913, 159 N. W. 565;Miller v. Taylor, 173 App. Div. 865, 159 N. Y. Supp. 999;Friebel v. Chicago, etc., Co., 280 Ill. 76, 117 N. E. 467; White v. Avery, 53 Scot. L. R. 122; Putnam v. Murray, 174 App. Div. 720, 160 N. Y. Supp. 811. In the other case our judgment is otherwise. The following are instructive: Inland Steel Co. v. Lambert, 118 N. E. 162, No. 9875, this term; Hewitt v. John Hancock, etc., Co., 225 Mass. 1, 113 N. E. 572, L. R. A. 1917B, 249; Smith v. Lancaster, etc., Ry., 1 Q. B. 141 (1899); Ocean, etc., Co. v. Industrial, etc., Com., 173 Cal. 313, 159 Pac. 1041, L. R. A. 1917B, 336; McLean v. MacBrayne, 53 Scot. L. R. 254.

We proceed to the third question: An examination of the Workmen's Compensation Act (Acts of 1915, p. 392), including the title, discloses that the beneficiaries of its provisions are designated without exception as employés. The first section, however, is to the effect that the act shall be known as the “Workmen's Compensation Act.” The word “employé” is a term of broad significance. Its definitions take a wide range. Among those set out in 15 Cyc. p. 1031, are the following: A person who is engaged in the service of another; one whose time and skill are occupied in the business of his employer; a laborer when engaged in service...