Indiana & Michigan Elec. Co. v. Morgan

• Decision Date: 30 June 1986
• Docket Number: No. 93A02-8601-EX-8,93A02-8601-EX-8
• Citation: 494 N.E.2d 991
• Court: Indiana Appellate Court
• Parties: INDIANA & MICHIGAN ELECTRIC COMPANY, Appellant, v. Deanna L. MORGAN, Surviving Spouse of Daniel L. Morgan, Deceased, and as Parent and Natural Guardian of Jeshua Jo Lee Morgan, Minor Child of Daniel L. Morgan, Deceased, Appellee.

Page 991

494 N.E.2d 991

INDIANA & MICHIGAN ELECTRIC COMPANY, Appellant, v. Deanna L. MORGAN, Surviving Spouse of Daniel L. Morgan Deceased, and as Parent and Natural Guardian of Jeshua Jo Lee Morgan, Minor Child of Daniel L. Morgan, Deceased, Appellee.

No. 93A02-8601-EX-8.

Court of Appeals of Indiana First District.

June 30, 1986.

Edward L. Murphy, Jr., Richard P. Samek, Livingston, Dildine, Haynie & Yoder, Fort Wayne, for appellant.

Stanley L. Campbell, Fort Wayne, for appellee.

STATEMENT OF THE CASE

NEAL, Judge.

On August 2, 1982, plaintiff-appellee, Deanna L. Morgan (Mrs. Morgan), filed a claim with the Industrial Board of Indiana for compensation for the death of her husband, Daniel L. Morgan (Morgan), arising from an accident which occurred while Morgan was an employee of Indiana & Michigan Electric Company (I & M). In proceedings before the single hearing member of the Board, I & M filed its Special Answer raising the affirmative defense that Morgan's intoxication while operating his automobile was the proximate cause of his death. The single hearing member ruled that Mrs. Morgan failed to prove that the accident arose out of and in the course of Morgan's employment, and even if it had, compensation was barred because the accident was caused by Morgan's intoxication. Upon review of the single hearing member's decision, the Full Industrial Board reversed and ruled that the accident did arise out of and in the course of Morgan's employment. I & M appeals from this ruling.

We reverse.

STATEMENT OF THE FACTS

Morgan was an employee of I & M which was involved in a construction operation near Huntingburg, Indiana. Irby Construction Company (Irby) was the contractor at I & M's construction project, and I & M and Irby employees worked together on the project. While working on this particular project, Morgan and the other I & M employees were lodged at the Dutchman Inn in Huntingburg with lodging and meal expenses paid by I & M. Since Morgan maintained a permanent residence in Fort Wayne, Indiana, I & M assigned him, as well as other employees, a company automobile to drive while away from home.

On December 17, 1981, both I & M and Irby were winding down their construction activities in anticipation of the Christmas break. I & M employees were planning to return to Fort Wayne on the following day. On the evening of the 17th, the Dutchman Inn sponsored an "open house" Christmas party for its regular guests, such as I & M's employees, which included hors d'oeurves and free drinks, both alcoholic and non-alcoholic, to be served from 5:30 p.m. to 7:00 p.m. Meanwhile, Irby was conducting its annual Christmas dinner for its employees, the employees' families, and guests, which was scheduled on the 17th from 7:00 p.m. to 9:00 p.m. No alcoholic beverages were to be served or allowed at the Irby dinner. The Irby dinner was held at the Lincoln Trails Inn Motel in Tell City, Indiana, which is approximately 40 miles southeast of Huntingburg. The I & M employees, including Morgan, were invited to the dinner by Julius Shumaker, the field superintendent for Irby.

The account of Morgan's activities and intentions on the evening of December 17th is based on the testimony of witnesses who were with Morgan or talked to him on that evening. John Gentry, I & M's supervising engineer and Morgan's supervisor, was with Morgan from approximately 5:30 p.m. until 7:00 p.m. at the open house. During this period of time, Mr. Gentry observed Morgan drinking one or two cans of beer. Before going to the open house party, Morgan discussed the Irby dinner with Darrell Radesk, and Mr. Radesk testified that Morgan and he planned to go together to the Irby dinner. When Mr. Radesk found Morgan at the open house party around 6:00 p.m. and asked Morgan if he was ready to go to the Irby dinner, Morgan told Mr. Radesk to go by himself and that he would come down later by himself. At approximately 7:00 p.m., Morgan told Gentry that he was going to his room to shower and to get ready to eat dinner. Morgan made no comment to Gentry regarding where he was going to eat dinner or that he intended to go to the Irby dinner.

Morgan was next seen at the front desk at the Dutchman Inn around 7:30 p.m. where he advised Chester Sims, another I & M employee, that he would see Mr. Sims in the Inn's lounge to listen to the band which was to start around 9:00 or 9:30 p.m. The next account of Morgan's whereabouts was at 9:06 p.m. when Morgan telephoned his wife in Fort Wayne from his motel room and indicated to her that he intended to attend Irby's dinner party in Tell City.

At approximately 10:50 p.m., Morgan was killed in an automobile accident on a two-lane state highway which heads in a general north-south direction. Morgan was driving north toward Huntingburg when the accident occurred approximately 16.5 miles south of Huntingburg.

ISSUES

I & M raises the following four issues:

I. Whether the Full Industrial Board erred as a matter of law by entering Conclusions of Law and Fact which are unsupported by appropriate findings of fact.

II. Whether the Full Industrial Board erred as a matter of law by entering findings of fact which are unsupported by the evidence.

III. Whether the Full Industrial Board erred as a matter of law in finding that the plaintiff's decedent's accident and death "arose out of and in the course of" his employment with appellant.

IV. Whether the Full Industrial Board erred as a matter of law in failing to make any findings, general or specific, on the issues raised by appellant's Special Answer.

However, because of our resolution of Issue III, we need not fully address the other issues.

DISCUSSION AND DECISION

In order to recover under Indiana's Workmen's Compensation Act, it was Mrs. Morgan's burden to prove that her husband's death arose "out of and in the course of the employment." IND.CODE 22-3-2-2. Since Morgan's job required that he work at a place away from his permanent residence, his actions are governed by standards set for traveling employees. See Olinger Construction Co. v. Mosbey (1981), Ind.App., 427 N.E.2d 910, trans. denied. Due to the nature of the traveling employee's job, the requirement that a compensable injury must "arise out of and in the course of the employment" has been somewhat relaxed. Id. Nevertheless, our courts still require that a plaintiff prove his injury occurred both "out of" and "in the course of" his employment. See Evans v. Yankeetown Dock Corp. (1986), Ind., 491 N.E.2d 969; Olinger Construction Co., supra.

An accident arises "out of" the employment when a causal connection exists between the injury and the duties or services of employment. Evans, supra; Prater v. Indiana Briquetting Corp. (1969), 253 Ind. 83, 251 N.E.2d 810; Suburban Ready Mix Concrete v. Zion (1983), Ind.App., 443 N.E.2d 1241; Estey Piano Corp. v. Steffen (1975), 164 Ind.App. 239, 328 N.E.2d 240. This causal connection is established when the accident arises out of a risk incidental to the employment. Zion, supra; Steffen, supra.

Risks incidental to and deemed arising out of employment include acts of employees which are reasonably necessary to their life, comfort or convenience, even though such acts are technically not acts of service. Evans, supra; Prater, supra; McDaniel v. Sage (1977), 174 Ind.App. 71, 366 N.E.2d 202. For example, where an employee is washing up after work, satisfying his thirst, seeking fresh air, answering telephone calls, eating lunch, or going to the toilet, such personal acts have been held to be in the pursuit of personal comfort or convenience and thus incidental to employment. 30 I.L.E. Workmen's Compensation ec. 125 (1960); B. SMALL, WORKMEN'S COMPENSATION LAW Sec. 6.15 (1950). As Olinger Construction Co., supra, suggests, the personal comfort or convenience needs of a traveling employee which arise out of or are incidental to employment may be further relaxed. Nevertheless, where an employee abandons or breaks the continuity of his employment for his individual purpose or benefit, engaging in activities not connected with the duties of his employment, such actions do not arise out of the employment. See Mathews v. Jim and Ed's Service Station (1964), 136 Ind.App. 28, 196 N.E.2d 282; 30 I.L.E. Workmen's Compensation Sec. 124 (1960); B. SMALL, supra, at Sec. 6.12, p. 143.

Accidents which occur "in the course of" employment refer to the time, place, and circumstances in which they take place, Lincoln v. Whirlpool Corp. (1972), 151 Ind.App. 190, 279 N.E.2d 596, rather than referring to the element of causation. Burger Chef Systems, Inc. v. Wilson (1970), 147 Ind.App. 556, 262 N.E.2d 660. In other words, if an injury occurs within the period of employment, at a place where the employee may reasonably be, and while he is fulfilling the duties of his employment, or is engaged in doing something incidental to it, it arises in the course of employment. See U.S. Fiber Glass Industries v. Uland (1965), 137 Ind.App. 278, 206 N.E.2d 385. In the context of a traveling employee, the court in Olinger Construction Co., supra at 913, stated:

"Thus, while the requirement that the accident occur 'in the course of' the employment usually means the accident must occur within the period of the employment, because of the special requirements of the traveling employee's job, the traveling employee is generally held to be in the course of his employment from the time he begins his journey until he returns to his home or permanent place of business unless he embarks on a purely personal errand. C & E Trucking v. Stahl (1962), 135 Ind.App. 600, 181 N.E.2d 21 [trans. denied ]; Business Systems v. Gilfillen (1950), 120 Ind.App. 565, 92 N.E.2d 868 [trans. denied ]; See also B. Small, Workmen's Compensation Law in Indiana, Sec. 7.4 (1976 Supp.)" (Footnote omitted.)

While there are distinctions between the elements "out of" and "in the course of," some similarities and overlap exist. Incidental activities...