Lasear, Inc. v. Anderson
Decision Date | 24 November 1934 |
Docket Number | No. 15309.,15309. |
Citation | 192 N.E. 762,99 Ind.App. 428 |
Parties | LASEAR, Inc., v. ANDERSON et al. |
Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Industrial Board.
Proceeding under the Workmen's Compensation Act by Loraine Anderson and others for the death of Elmer Anderson, opposed by Lasear, Inc., employer. To review an award of the Industrial Board, employer appeals.
Affirmed.Slaymaker, Merrell & Locke, of Indianapolis, for appellant.
W. F. Robison, of Frankfort, for appellees.
This is an appeal from an award of compensation made by the full Industrial Board to appellees as surviving dependents of one Elmer Anderson, alleged to have died as the result of injuries received by him by reason of an accident arising out of and in the course of his employment by appellant. The appellant presents the usual statutory assignment of error for reversal.
The facts may be summarized as follows: The appellant is a trucking company engaged in hauling general merchandise to and from different points in Indiana and adjoining states. Its headquarters are located in Lebanon, Ind. Elmer Anderson was in its employ as a driver of one of its trucks. On November 14, 1933, he left Lebanon, Ind., with a truck loaded with merchandise, to be delivered to a customer of the shipper at Akron, Ohio. The distance between the two points is about 325 miles. Two other drivers with loaded trucks accompanied him. The appellant furnished each of the drivers with $1 to be used by them for the purpose of obtaining their rest. How they spent the dollar in order to get their rest made no particular difference to appellant, so long as the drivers got their rest. Appellant did not require Anderson to spend the dollar, but, for the purpose of its records, it did require him to make out a report of each trip on what was designated as a “trip card,” on which appeared expenditures for gas, hotels, miles traveled, bills of lading, etc., including the disposition made of the dollar. We quote from appellant's résumé of the evidence as given by its manager, which, it is agreed, is correct and as set out in appellant's brief as follows:
On this trip Anderson was driving a G. M. C. truck, consisting of a tractor and semi-trailer. There was no place in this truck to sleep when it was loaded with merchandise. The tractor was fitted with a driver's cab, which could be locked. The front and sides of the trailer body were solid, the rear was closed with a tailgate, the top was covered with a tarpaulin which was just tied to the body. On the night in question, the thermometer registered two degrees below zero; the roads were icy. At 11 o'clock that night Anderson and the other two drivers arrived at a tourist camp one mile east of the village of Greenwich, Ohio, where they stopped, rented a cabin, parked their trucks side by side, a distance of not more than seventy-five feet from the cabin rented by them, and retired there for the purpose of sleeping during the night. The cabin was furnished with a small dresser, one chair, one double bed, and a gas heater. This heater was the only means of heating the cabin. Some time between the hours of 11 o'clock p. m. of November 14 and 12 o'clock noon of November 15, 1933, all three of the men died as the result of either gas poisoning, carbon monoxide poisoning, or suffocation. The gas heater was still burning when their bodies were discovered.
The full Industrial Board found as an ultimate fact that “Elmer Anderson suffered an injury as the result of an accident arising out of and in the course of his employment.”
The award of compensation made by the full Industrial Board, in conformity with the finding of facts, is challenged by the appellant as being contrary to law, because the evidence is not sufficient to sustain the finding of facts, and they are not sufficient to sustain the award.
While we do not find a decided case where the facts are exactly parallel with the instant case, we do find cases where the facts are quite similar, and in which the opinion of the court furnishes valuable aid. We also find certain well-recognized principles of law, which control in what we think is the proper determination of the respective rights of the parties now before the court.
[1][2][3][4][5][6][7] The full Industrial Board found as an ultimate fact that the injury suffered by Anderson was the result of an accident arising out of and in the course of his employment by the appellant. 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 the case, and, if in determining them it reached a legitimate conclusion from the evidential facts, this court cannot disturb that conclusion, though it might prefer another conclusion equally legitimate. Lazarus v. Scherer (1931) 92 Ind. App. 90, 174 N. E. 293. Whether the person injured is an employee under the Workmen's Compensation Act, Acts 1929, p. 536, c. 172, is a question of law where the facts are undisputed. Manfield, etc., Co. v. Manfield (1932) 95 Ind. App. 70, 182 N. E. 539;Holycross, etc., Inc., v. Nye (Ind. App. 1933) 186 N. E. 915. In order that the Workmen's Compensation Act may accomplish the humane purpose for which it was passed by the Legislature, it must be liberally construed. Jeffries v. Pitman-Moore Co. (1925) 83 Ind. App. 159, 147 N. E. 919, 920. “The words ‘by accident arising out of’ the employment as used in section 2 of the Workmen's Compensation Act *** [now Acts 1929, p. 537, section 40-1202, Burns' 1933; section -, Baldwins, Ind. St. 1934] should be...
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