Kariger Motors, Inc. v. Kariger

• Decision Date: 18 April 1961
• Docket Number: No. 19424,No. 2,19424,2
• Citation: 173 N.E.2d 916,132 Ind.App. 85
• Parties: KARIGER MOTORS, INCORPORATED, Appellant, v. Nina G. KARIGER, Linda Kariger, Keith Kariger, Appellees
• Court: Indiana Appellate Court

Page 916

173 N.E.2d 916

132 Ind.App. 85

KARIGER MOTORS, INCORPORATED, Appellant, v. Nina G. KARIGER, Linda Kariger, Keith Kariger, Appellees.

No. 19424.

Appellate Court of Indiana, Division No. 2.

April 18, 1961.

Rehearing Denied June 13, 1961.

Hunt & Suedhoff, Fort Wayne, for appellant.

Campbell, Gemmill, Browne, Torrance & Sisson, Marion, for appellees.

PEAFF, Presiding Justice.

This is an appeal from an award of the Industrial Board of Indiana granting compensation to appellees for the death of the appellees' decedent, O. Eugene Kariger, by reason of an accident arising out of and in the course of his employment by the appellant.

This petition for compensation was heard by a single member of the Industrial Board who granted compensation and, upon review by the Full Industrial Board, the award made by the single member was affirmed except for reducing the period of compensation from 400 weeks to 350 weeks.

Error assigned for reversal is that the award of the Industrial Board of Indiana is contrary to law. Appellant's assignment of error questions the findings and award of the Industrial Board and alleges that the accidental injuries which resulted in the death of the decedent, O. Eugene Kariger, did not arise out of and in the course of his employment by the appellant and that the death of the decedent was a result of his own commission of a misdemeanor or a felony.

Thus the primary question presented by this appeal is the correctness of the finding of the Industrial Board as to whether the decedent was killed in an accident which arose out of and in the course of his employment by the appellant.

This court is committed to the rule that it will not weigh the evidence; and if there is any evidence of probative value to sustain the award of the Industrial Board, the same will be sustained considering only the evidence most favorable to appellees. Logan v. Acme Machine Products Div., 1942, 110 Ind.App. 556, 39 N.E.2d 797; Wilson v. Betz Corp., 1958, 128 Ind.App. 189, 146 N.E.2d 570; Jenkins v. Pullman Std. Car Mfg. Co., 1958, 128 Ind.App. 260, 147 N.E.2d 912.

The evidence discloses that on February 1, 1957, at approximately 10:30 P.M. the appellees' decedent was driving alone in his automobile towards his residence in Van Buren, Indiana, and was involved in an automobile collision which occurred three and one-half miles south of Huntington on State Road 221 in Grant County, Indiana. The decedent was fatally injured in this accident. The decedent was an employee of the appellant, a corporate auto agency franchised by Studebaker Packard Corporation and engaged in the business of buying, selling, repairing and servicing new and used motor vehicles, and located in Fort Wayne, Indiana. The decedent, President of the appellant corporation, was also a majority stockholder in the corporation. The decedent's permanent residence was in Van Buren, Indiana. The appellant corporation conducted its banking business with the Van Buren Bank because the decedent had always done business there and could borrow money if needed. As part of the salary or compensation, the appellant furnished the decedent an automobile for his transportation, including gasoline, and the decedent was driving appellant's automobile at the time the fatal accident occurred. That the appellant corporation made deposits at the bank almost daily and that the deposits were made by the deceased usually in the early part of the morning after the bank opened. That the deposits had been made for approximately three years and during that time the bank had no night depository. The bank closed at 3:00 o'clock and deposits could not be made by anyone leaving Fort Wayne after 9:00 P.M. until the following morning. That on the day in question, the appellant corporation stayed open until 9:00 P.M. That it was in the course of decedent's duty each day and/or each night to carry funds belonging to the employer for deposit in the Van Buren Bank which was near the decedent's home, and that at the time of his fatal injury, the decedent was carrying cash and checks belonging to the appellant for deposit. That the accident occurred on Friday night. That it was decedent's custom and habit to keep the funds to be deposited in his possession until the next morning when the bank opened. That the decedent's accident occurred about 10:30 P.M. after he had traveled thirty miles toward home on his usual route.

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 particular facts and circumstances of each case. Emmons v. Wilkerson, 1950, 120 Ind.App. 100, 89 N.E.2d 296.

It is a general rule that an accident occurring on the way to or from the place of employment is not compensable because it does not arise out of and in the course of the employment. Stadler Fertilizer Co. v. Bennett, 1954, 124 Ind.App. 524, 119 N.E.2d 26; Emmons v. Wilkerson, supra; Kiddie Knead Baking Co. v. Bolen, 1939, 106 Ind.App. 131, 17 N.E.2d 477.

However, this rule is not inflexible and is subject to exceptions which depend on the nature, circumstances, and conditions of the particular employment and the circumstances of the particular case. 99 C.J.S. Workmen's Compensation § 232, pp. 813, 814.

One exception to the general rule is where the means of transportation to or from work is furnished by the employer. Zietlow v. Vickers, 1932, 94 Ind.App. 455, 181 N.E. 376. Professor Ben F. Small in his Workmen's Compensation Law of Indiana states in § 7.7, beginning on p. 172:

'Another exception to the general rule is recognized in cases where the means of transportation to or from work is furnished by the employer. * * * Before compensation may be given in such cases the transportation must be furnished either as an express or as an implied part of the contract of employment. * * * However, the provision for transportation need not be expressed. An implied agreement will suffice if there is enough evidence to warrant the implication. * * * it is somewhat difficult in some cases to decide whether a particular accident occurred out of and in the course of the employment or out of and in the course of the employee's own private pursuits. This problem is usually left for the Board without much subsequent court interference.'

In this case, the decedent was driving an automobile owned by the appellant corporation and was carrying the appellant's funds for the purpose of depositing them in the bank.

The words 'by accident arising out of and in the course of the employment' as used in the Workmen's Compensation Act, Burns' Ann.St. § 40-1202, should be given a broad and liberal construction in order that...