Lasear, Inc. v. Anderson

• Decision Date: 24 November 1934
• Docket Number: 15,309
• Citation: 192 N.E. 762,99 Ind.App. 428
• Parties: LASEAR, INC. v. ANDERSON ET AL
• Court: Indiana Appellate Court

192 N.E. 762

99 Ind.App. 428

LASEAR, INC. v. ANDERSON ET AL

No. 15,309

Court of Appeals of Indiana

November 24, 1934

From Industrial Board of Indiana.

Proceedings under the Workmen's Compensation Act by Loraine Anderson and others, as dependents of Elmer Anderson, deceased employee, against Lasear, Incorporated, employer. From an award granting compensation, the employer appealed.

Affirmed.

Burke G. Slaymaker, Clarence F. Merrell, Theodore L. Locke, James V. Donadio, and Robert S. Smith, for appellant.

William Robinson, for appellees.

OPINION

WOOD, J.

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, Indiana. Elmer Anderson was in its employ as a driver of one of its trucks. On November 14, 1933, he left Lebanon, Indiana, 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 one dollar 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 resume of the evidence as given by its manager, which it is agreed is correct and as set out in appellant's brief as follows:

"The equipment is always in the protection of the driver and as far as any particular instructions relative to staying at the truck or anything like that, there was no instruction as to that. There was no time when he was out on the route that he was, or must stay, near the truck. I think that the driver, having full charge of the equipment, would probably answer that at all times. He would have to use his own judgment as to where the truck would be left and how he would leave it. I would say the equipment included the load because, as the equipment was in his care, evidently the load would be in his care too. The load was in his care from the time he left Lebanon until it was delivered. In what manner he would take care of that was entirely up to the driver. There was no instructions given as to what he should do with his equipment when he was out on the road, only to keep the equipment in the best possible condition he could."

"I did not have any control as to where they should spend their nights. I did not instruct them where to spend their nights so that they could contact me at nights. After they retired for the night I did not give them any instructions as to where to stay so that I could get in touch with them. They were to drive, and where they put up at night or where they went to bed made no particular difference to me as long as they arrived at the destination in good condition, and, as far as making contacts with the different drivers during the night, I have no idea where the different drivers sleep or rest at night."

"There was no way to lock this tarpaulin on the truck--just tied on by ropes. When they were on the road we did not make any allowance for meals, just sleeping. The roads were icy at the time. I gave no directions as to what road he should take to Akron, that was entirely up to the driver. From the time he left Lebanon until he returned, the truck and all the equipment was under the driver's jurisdiction entirely."

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 tail gate, 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 eleven 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. Sometime between the hours of eleven o'clock p. m. of November 14, and twelve 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.

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. 537, 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 (1933), 97 Ind.App. 372, 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 (1925), 83 Ind.App. 159, 147 N.E. 919. "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, § 40-1202, Burns 1933, § 16-377, Baldwin's Ind. St. 1934), should be liberally construed so as to accomplish the humane purpose of the act." In Re Bollman (1920), 73 Ind.App. 46, 48, 126 N.E. 639; Holland etc., Co. v. Shraluka (1917), 64 Ind.App. 545, 116 N.E. 330; In Re Ayers (1918), 66 Ind.App. 458, 118 N.E. 386. The question in each case must be determined from a consideration of the facts and circumstances in the particular case under investigation. Fur...