Marshall v. Tribune-Star Pub. Co.

• Decision Date: 17 January 1969
• Docket Number: No. 667,TRIBUNE-STAR,667
• Citation: 251 Ind. 557,243 N.E.2d 761,16 Ind.Dec. 378
• Parties: Dorothy E. MARSHALL and Diane Marshall, Appellants, v.PUBLISHING CO., Inc., Appellee. A 17.
• Court: Indiana Supreme Court

Page 761

243 N.E.2d 761

251 Ind. 557

Dorothy E. MARSHALL and Diane Marshall, Appellants, v. TRIBUNE-STAR PUBLISHING CO., Inc., Appellee.

No. 667 A 17.

Supreme Court of Indiana.

Jan. 17, 1969.

Tony Foster, Indianapolis, for appellants

Edward J. Ohleyer, Indianapolis, for appellee.

ON PETITION TO TRANSFER

HUNTER, Judge.

This case comes before this Court on a petition to transfer which was filed by the appellee, Tribune-Star Publishing Co., Inc. The petitioner is engaged in the publication of two daily newspapers in Terre Haute, Indiana, and this controversy grows out of a claim for workmen's compensation benefits filed by the widow of Raymond J. Marshall. The deceased was one of Petitioner's employees on the date of his death. An extensive statement of the facts appears in the opinion of the Appellate Court, reported at 236 N.E.2d 508, and needs no repetition here. Briefly, Mr. Marshall was killed in an automobile collision which occurred at about 5 A.M. on May 21, 1961. As an employee of petitioner, one of Mr. Marshall's duties was to deliver bundles of morning papers to various drop-off points in the city of Terre Haute, using his own auto to do so. The resolution of this claim for workmen's compensation benefits turns upon whether or not the decedent's fatal injuries were suffered 'by accident arising out of and in the course of the employment.' Ind.Ann.Stat. § 40--1202 (1965 Repl.)

The evidence in this cause was presented before a Single Member of the Industrial Board on March 29, 1966, and, after due consideration, that member determined that the death of Raymond Marshall did result from an accident 'arising out of and in the course of the employment.' Thereafter, the cause was reviewed by the Full Industrial Board on February 15, 1967. The Full Board reversed the finding of the Single Member, holding that Marshall's injuries and death 'were not caused by an accident arising out of and in the course of his employment with the defendant.' Following this decision by the Full Board, Mrs. Marshall appealed the matter to the Appellate Court of Indiana, which court, on April 30, 1968, reversed the decision of the Full Industrial Board stating:

'It is our opinion that the facts in the case at bar lead inescapably to the conclusion that the death of appellants' decedent was in the course of his employment and that the award of the Industrial Board was contrary to law.' Marshall v. Tribune-Star Publishing Co. (1968), Ind.App., 236 N.E.2d 508.

The opinion of the Appellate Court notes that Marshall was required to use his own automobile on this job, and that he was paid a car allowance of $5.00 per week in addition to his salary of $14.00 per week. The fact that it was decedent's duty to use his car to deliver papers to drop-off points is supported by the uncontradicted testimony of Petitioner's own witness, John Melosch, and is, therefore, part of the evidence most favorable to the Appellee-Petitioner. See Emmons v. Wilkerson (1949), 120 Ind.App. 100, 89 N.E.2d 296.

It is the well-established law of this state that in reviewing the sufficiency of the evidence to support findings of fact made by an administrative agency, this court will only overturn an agency finding if it appears that the evidence upon which the agency acted was devoid of probative value, or so meagre as to lead to the conviction that the finding does not rest upon a rational basis, or where it appears that the result of the hearing must have been influenced by improper considerations. Warren v. Indiana Telephone Co. (1940), 217 Ind. 93, 26 N.E.2d 399.

In the case at bar, we believe that despite this stringent rule it was necessary for the Appellate Court to reverse the award of the Industrial Board. Even when the evidence is viewed most favorably in all respects to the award made by the Full Board, together with all reasonable and logical inferences to be drawn therefrom, it nevertheless appears from the uncontroverted evidence of petitioner's own witnesses that the decedent was required to use his automobile to carry out the duties of his employment, that he was given an expense allowance of $5.00 per week therefor, and that at the time of the collision which caused his death the decedent was...