Mace v. Ertel Mach. Co.

• Decision Date: 10 May 1940
• Docket Number: 16541.
• Parties: MACE v. ERTEL MACH. CO.
• Court: Indiana Appellate Court

27 N.E.2d 85

108 Ind.App. 301

MACE v. ERTEL MACH. CO.

No. 16541.

Appellate Court of Indiana, in Banc.

May 10, 1940

Wilbur A. Royse and Owen Boling, both of Indianapolis, for appellant.

Matson Ross, McCord & Ice and Jas. V. Donadio, all of Indianapolis, for appellee.

LAYMON Judge.

This is an appeal from an award of the Industrial Board of Indiana denying appellant compensation.

The issues were formed by appellant's application for compensation and the special answer of appellee in three paragraphs, first, general denial; second, that the death of appellant's decedent was due to his intoxication; and third, that the death of appellant's decedent occurred in the state of Illinois on U.S. Highway No. 24 at a point where railroad tracks intersect said highway, and that the death of the deceased employee was due to his commission of a misdemeanor defined by the statute of Illinois requiring automobiles to stop at railroad crossings. On December 1 1939, the full board, upon review, found for the defendant (appellee) on its special answer and for appellee upon plaintiff's (appellant's) application, and further found that the death of John B. Mace was not the result of an accident arising out of and in the course of his employment with the appellee. The board then entered its award denying compensation. Appellant has appealed and has assigned as error that the award of the full board is contrary to law.

On February 13, 1940, the full board made and entered a corrected award, which, so far as it differs from the first award, is as follows:

"Comes now the defendant as of July 15, 1939, and files its special answer in three paragraphs which is in the words and figures as follows: (H.I.)

"And the Full Industrial Board having heard the argument of counsel, having reviewed the evidence, and being duly advised therein, now finds for the defendant on its first paragraph of answer, in that the injury and death of one John B. Mace, plaintiff's decedent, on March 1, 1939, was not the result of an accident arising out of and in the course of his employment with the defendant.

"And the Full Industrial Board further finds for the defendant on the second paragraph of its special answer, in that the death of the said plaintiff's decedent, John B Mace, was due to the intoxication of the said John B. Mace.

"And the Full Industrial Board further finds for the defendant on the third paragraph of its special answer, in that the death of said plaintiff's decedent, John B. Mace, was the result of a misdemeanor, in that his death, which occurred at a point on U.S. Highway No. 24 where railroad tracks intersect and pass over said highway, was caused by his violation of a statute duly enacted by the General Assembly of the State of Illinois, same being Article XII, paragraphs 180 and 183 thereof [Ill. Rev.Stat. 1939, c. 95 1/2] and also paragraph 137, as pleaded by defendant in paragraph 3 of its answer, which statute requires vehicles to stop and obey railroad crossing signals."

The corrected award was brought to this court as a part of the record in the appeal in response to a writ of certiorari.

Appellant objects to the corrected award upon the ground that the Industrial Board has no power to change or modify its original award except to correct any clerical error or mistake of fact in any finding or award. Section 40-1410, Burns' 1933, Sec. 16421, Baldwin's 1934.

In examining the original award and the corrected award it is apparent that the full board, by the latter, did nothing more than to elaborate upon the original award in order to effect a more complete pronouncement of its findings. Under such circumstances, the correction could not affect the substantial rights of the parties and, we think, is within the power authorized by the statute.

Appellant, by proper assignment, has presented the sufficiency of the evidence to sustain the findings (1) that the death of appellant's decedent was not the result of an accident arising out of and in the course of his employment with appellee; (2) that the death of appellant's decedent was due to his intoxication; and (3) that the decedent's death was caused by his violation of a penal statute of the state of Illinois defining a misdemeanor.

Any one of the above findings, if supported by competent evidence, would preclude a recovery and require an affirmance of the award.

Testimony was introduced to show that John B. Mace, appellant's decedent, was employed by the appellee machine company as a traveling salesman and sales manager to call on customers throughout the United States. Appellee furnished him with a 1939 Buick coupé and paid his traveling expenses. In addition, he received a salary of $40 a week. Before leaving on a trip, Mace submitted an itinerary to his employer for approval. This itinerary was subject to change, however, due to delays or to occasions when he departed from his schedule to call on new prospects of whom he had learned. Mace was required to send in a daily report showing his business activities during the day and where he was spending the night. On February 20, 1939, he left Indianapolis for Peoria Illinois. His schedule took him into Wisconsin and to cities in Minnesota and Iowa and called for him...