Kiddie Knead Baking Co. v. Bolen

• Decision Date: 28 November 1938
• Docket Number: 16206.
• Citation: 17 N.E.2d 477,106 Ind.App. 131
• Parties: KIDDIE KNEAD BAKING CO. et al. v. BOLEN.
• Court: Indiana Appellate Court

17 N.E.2d 477

106 Ind.App. 131

KIDDIE KNEAD BAKING CO. et al. v. BOLEN.

No. 16206.

Appellate Court of Indiana, in Banc.

November 28, 1938

James L. Murray, of Indianapolis, for appellants.

Long & Yarlott and Frederick Landis, all of Logansport, for appellee.

STEVENSON Judge.

The appellants in this case, the Kiddie Knead Baking Company and the Lumbermen's Mutual Casualty Company, prosecute this appeal from an award of compensation made to the appellee Ray Bolen, by a majority of the Industrial Board, for injuries alleged to have been sustained by appellee, Ray Bolen, as a result of an accidental injury which occurred on the 24th day of July, 1937.

The only error assigned by the appellants is that the final award of the full Industrial Board of Indiana is contrary to law.

A study of the briefs of the parties and a review of the evidence heard by the Industrial Board in this case disclose the following facts: The appellee, Ray Bolen, was a salesman employed by the Kiddie Knead Baking Company of Logansport Indiana. At the time of his employment and at the time of the injury complained of in this case, he was living with his family at a point about four miles north of Logansport. His work as a salesman for the appellant company consisted of the sale of bakery products to customers along a specified route in a territory north of Logansport. The route traveled by the appellee was approximately 175 miles in length and it was the duty of the appellee to cover this route daily for the purposes of making sales and deliveries of bakery products to the stores and customers along the way. In traveling this route the appellee operated his own truck, paid his own expenses and was paid a salary by the Kiddie Knead Baking Company on a commission basis with a minimum guarantee of $24 per week. The appellee, Mr. Bolen, had been working for Kiddie Knead Baking Company on this route for about three months, distributing bread, pastries, rolls and cookies selling to the customers of the baking company along the route and to any others who might wish to buy. At the time Mr. Bolen started to work for the company, a representative of the baking company went with him over the route to acquaint him with their customers and to give him the necessary instructions as to the conduct of the business. A supervisor also covered the route at various intervals to check the stock and make inquiries as to whether the services were satisfactory.

It was the custom of Mr. Bolen to leave his home early in the morning and drive to the bakery at Logansport where he would load his truck with the bread and pastries needed for his deliveries on that day. He usually called at the bakery between the hours of 3:00 and 5:00 o'clock in the morning and loaded his truck. The products taken by him each morning were charged to his account by the baking company and he was permitted to sell the same to any one on the route who wished to buy at a price fixed by the baking company. At the end of the day it was his duty to report to the baking company the amount of his sales; turn in his cash collected, and return any unsold products. His account was credited with any unsold products returned and at the end of the week he was paid his salary, based upon the volume of merchandise sold. His average weekly wage on a commission basis was about $26.38.

It is disclosed by the evidence that the baking company desired a return of the unsold products and they considered it a part of the job on which the appellee Bolen was employed to return this unsold bread and pastries.

On the afternoon of July 23, 1937, the appellee, Bolen, came home from his route between two and three o'clock with unsold baking products in his truck consisting of cookies, several packages of rolls and 25 loaves of bread. He was suffering from a headache and a cold and asked his wife to check in his sales at the baking company's plant for him. They then went out to the truck and discovered that some repairs were necessary on the truck and the appellee, Bolen, and his wife drove the truck to a filling station in Logansport some three or four blocks from the baking company's place of business and while the truck was being repaired, Mrs. Bolen took the cash and receipts for the day's business to the baking company's office and delivered them to the bookkeeper with the statement that the bread and pastries left in the truck would be delivered by Mr. Bolen the next morning. This arrangement was satisfactory with the baking company. On the morning of July 24, 1937, Mr. Bolen left his home shortly before four o'clock in the morning and, while on his route to the plant of the Kiddie Knead Baking Company and while driving his truck used by him in the operation of his business, was struck by a Pennsylvania Railroad train at a public crossing in the city of Logansport. In this accident the appellee, Ray Bolen, received injuries for which the Industrial Board awarded compensation at the rate of $8.80 per week, beginning August 1, 1937, the same to continue so long as the plaintiff continued to be totally disabled not exceeding the period fixed by law.

From this award by the Industrial Board the appellants prosecute this appeal and the only question presented by the Record is whether or not the accident and resulting injury arose out of and in the course of the appellee's employment.

The Industrial Board of Indiana has found as an ultimate fact that the injury suffered by the appellee, Bolen, was the result of an accident arising out of and in the course of his employment by the Kiddie Knead Baking Company. If there is any competent evidence to sustain that finding, it is binding upon this court. Likewise, it was within the province of the Industrial Board to determine the ultimate facts in this case...