Lona v. Sosa
| Decision Date | 14 May 1981 |
| Docket Number | No. 2-880A276,2-880A276 |
| Citation | 420 N.E.2d 890 |
| Parties | Dr. Marco A. LONA and Mary Ann Hoff, Appellants (Defendants Below), v. Hilda SOSA, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Samuel J. Furlin, Spangler Jennings Spangler & Dougherty, P.C., Merrillville, for appellants.
W. Henry Walker, Sr., W. Henry Walker & Associates Professional Corp. Inc., East Chicago, for appellee.
Dr. Marco A. Lona and Mary Ann Hoff 1 appeal the decision of the Full Industrial Board awarding benefits to Hilda Sosa for the death of her husband Thomas Sosa, an employee of Dr. Marco Lona. Lona argues that because there is insufficient evidence to establish that the death of Thomas Sosa arose out of and in the course of his employment, the Board's award is contrary to law. 2 Having determined there is no evidence from which a reasonable inference can be drawn that the death of Sosa occurred in the course of his employment, we reverse the award.
The evidence, construed in favor of the Board's findings, discloses that Thomas Sosa was hired by Dr. Lona, owner of "Thee Place," a tavern in East Chicago, Indiana, in early November, 1975 as janitor, stocker and occasional bartender. Sosa's duties began about 7:00-8:00 a. m. each morning when he would clean the tavern and open it for business. Although he usually finished work about 5:00 p. m., his hours were irregular and he would occasionally be called in to work other times by Manuel Avitia, manager of the tavern. On November 18, 1975, Sosa worked his regular daytime hours and then, at 11:00 p. m., was asked by Manager Avitia to tend bar and look after the tavern while Avitia stepped out. Sosa worked tending bar until sometime after 2:00 a .m. when Avitia returned. Upon his return, Avitia relieved Sosa of his bartending duties and began to close up the tavern. Sosa sat down in a booth and began or continued his drinking. Testimony of several customers established that Sosa was very inebriated. Avitia counted and recorded the receipts of the day, talked to customers, cleaned up the tavern, and finally about 5:00-5:30 a. m. cleared the tavern of all customers but Sosa and Pete Acevez. A discussion or argument occurred between Sosa and Avitia. Avitia was overheard by the remaining customer, Acevez, to say something about "five dollars short." Sometime thereafter, Sosa was shot and killed by Avitia.
Based upon the above evidence, the Board found the following facts and made the following findings and award:
SUMMARY OF THE FACTS
Thomas A. Sosa, plaintiff's decedent, earned thirty-five ($35.00) dollars per week at the time of his death on the 19th of November, 1975, from his employment at Thee Place, then and there being under the ownership of Dr. Marco A. Lona.
That in the late evening of November 18, 1975, and the early morning of November 19, 1975, Thomas A. Sosa was assigned by Manuel Avitia to tend bar at Thee Place under his authority as manager, starting at 11:00 P.M., while he left for other places; that Manuel Avitia returned to Thee Place sometime after 2:00 A.M., the exact time unknown, and Thomas A. Sosa was still pursuing the assignment given him by manager Avitia; tending bar, a That Thomas A. Sosa had regular duties on said date at Thee Place to clean up and arrange the facility in an orderly fashion after closing and before reopening at 11:00 A.M., each business day, and that he had no regularly assigned time to perform this function; that the time of such function was left to him.
necessary course in the trade and business of the employer.
That sometime after manager Avitia's return and finding decedent still on the premises, he, Avitia, began a check of the amount of income for the period of time he left the business in the hands of decedent, and believing the funds to be short of the principal's money collected by him, the decedent, Avitia shot and killed the decedent on the premises.
That at the time of the killing, Thomas A. Sosa was at the place of his employment pursuant to his assigned employment at that time as bartender and/or as porter and clean-up person; that under such circumstances, he was killed by a fellow employee who had supervisory authority from the master over the decedent.
That no partial payment of any kind has been paid to the dependents herein named as compensation, nor as medical or funeral reimbursement.
That on the date of his death, November 19, 1975, Thomas A. Sosa left surviving him as his legal dependents, his wife, Hilda, and his minor son, Manuel, born on the 9th day of April, 1964.
Plaintiff's Ex. 1 in four pages, as well as the marriage certificate of Thomas A. Sosa and Hilda Andrade, and the certificate of birth of Manuel Sosa were submitted and admitted into evidence. Defendant's Exhibits A through D were submitted and admitted into evidence. The defendant filed and published the depositions of Manuel S. Avitia and Hilda Sosa.
Said hearing member having heard all of the evidence in said cause, having reviewed the entire record, and being duly advised in the premises therein, now finds:
That on the 19th day of November, 1975, one Thomas S. (sic.) Sosa, plaintiff's decedent, was in the employ of the defendant at an average weekly wage of $35.00; that on said date said decedent came to his death by reason of an accident arising out of and in the course of his employment by said defendant; that defendant had knowledge of said accidental injury and death but did not furnish medical attention or burial expense for said decedent.
That at the time of his death decedent left surviving him his wife, Hilda, and his minor son, Manuel, born September 4, 1964, with whom he was living and both of whom were totally dependent upon him for their maintenance and support.
The hearing member now finds for the plaintiff and against the defendant on plaintiff's Form 10 application for the adjustment of claim for compensation, filed on October 15, 1976.
IT IS THEREFORE CONSIDERED, ORDERED, AND ADJUDGED by the Industrial Board of Indiana that plaintiffs have and recover from defendant compensation, in equal shares, at the rate of $50.00 per week, beginning the 19th day of November, 1975, for a specific period of 500 weeks, not to exceed the total sum of $25,000.00.
Dr. Lona contends that the Board's award is contrary to law because the facts found by the Board in support of its finding that Sosa's death arose out of and in the course of his employment are not supported by sufficient evidence. An elementary principle of appellate review of administrative decisions is that the appellate court will not weigh the evidence, judge the credibility of witnesses or substitute its judgment of the factual record for that of the Industrial Board. Goldstone v Kozma, (1971) 149 Ind.App. 626, 274 N.E.2d 304. Whether an injury arises out of and...
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