Miller v. Barrett

• Decision Date: 24 May 1971
• Docket Number: No. 1170A192,1170A192
• Parties: P. Michael MILLER v. James M BARRETT, Jr. et al. d/b/a Barrett, Barrett & McNagny.
• Court: Indiana Appellate Court

Page 772

269 N.E.2d 772

148 Ind.App. 685

P. Michael MILLER v. James M BARRETT, Jr. et al. d/b/a Barrett, Barrett & McNagny.

No. 1170A192.

Appellate Court of Indiana, In Bank.

May 24, 1971.

Leonard E. Eilbacher, Hunt, Suedhoff, Borror & Eilbacher, Fort Wayne, for appellant.

James V. Donadio, G. Daniel Kelly, Jr., Ice, Miller, Donadio & Ryan, Indianapolis, for appellee.

PER CURIAM.

This case is before this court for review of an award of the full Industrial Board of Indiana pursuant to the 'appeal' provisions of IC1971, 22--3--4--8, formerly Indiana Acts 1929, ch. 172, § 61, being also Indiana Statutes Annotated (Burns' 1965 Repl.) § 40--1512. Sharp, J., Hoffman, C.J., Sullivan, P.J., and Lowdermilk, J., are of the opinion that the award should be affirmed. White, J., Buchanan, J., Robertson, J. and Staton, J. are of the opinion that the case should be remanded to the Industrial Board for a finding of facts.

Therefore, by reason of the even division of the judges, the award of the Industrial Board is affirmed. Ball Brothers Company v. Review Board of the Indiana Employment Security Division (1960), 240 Ind. 582, 167 N.E.2d 469; State ex rel M.T.A. v. Indiana Revenue Board (1969), 251 Ind. 607, 244 N.E.2d 111; Indiana Rules of Procedure, Rule AP 15(E).

Award affirmed.

SHARP, Judge.

This is a review of the negative award by the Industrial Board in a Workman's Compensation Claim. The Board found that 'plaintiff sustained personal injuries while on a personal mission of his own, and that said injuries did not arise out of or in the course of his employment with the defendant.'

We must examine the factual inferences in the light most favorable to the decision of the Industrial Board. The sole contention of error is that the decision of the Industrial Board in this case was contrary to law.

At the time of the accident in this case on October 22, 1969, the appellant was a salaried attorney employed by the appellee law firm of Barrett, Barrett and McNagny which maintained its law office in the City of Fort Wayne, Indiana. The appellant had been so employed for approximately four years. The defendant firm was composed of eight partners and six associate attorneys, including the appellant. The plaintiff had no prescribed hours but generally worked in the Fort Wayne office approximately 50 to 60 hours per week. The plaintiff was principally engaged in litigation practice in defending several cases for insurance companies in the State and Federal Courts in Allen County and neighboring counties. In the regular course of his employment the appellant used his own automobile for frequent trips on firm legal business. He was expected to perform generally any work for his employers at any hour. The plaintiff had also worked on occasion in his home in trial preparation, telephone calls and for some client meetings. One of the defendant partners testified that the plaintiff was required by his employer to furnish his own automobile for use in his employers' business. The testimony is undisputed that the plaintiff was reimbursed for his automobile expenses but was not reimbursed for his auto expenses inside Allen County. For a short period of time in 1969 the appellee employer had furnished the plaintiff an automobile when the appellant's automobile was out of order. The plaintiff's home was in Allen County and he was never reimbursed for ordinary trips between his home and the appellees' office in Fort Wayne. The appellant was receiving training in litigation from partners in the firm and was given more and more responsibility. After trial it was customary to have discussions and rehashings as a part of the training program.

On October 22, 1969, the appellant and one of the partners in the defendant firm, Mr. J. Michael O'Hara, were engaged in the defense of a civil damage suit in Allen Superior Court No. 2 in Fort Wayne, Indiana. The case was submitted to the jury for deliberation at approximately 4:00 o'clock P.M. on the afternoon in question. The plaintiff and Mr. O'Hara returned to the firm office in Fort Wayne and remained there until approximately 6:45 P.M. On the suggestion of Mr. O'Hara the two of them went to Mr. O'Hara's private country club, the Orchard Ridge Country Club, to await the jury verdict. The appellant was not a member of the Orchard Ridge Country Club and did not frequent it. The appellant and Mr. O'Hara went from the office of the defendant to the Country Club in their separate and private automobiles. The telephone number of the club was left with the Court Bailiff by Mr. O'Hara. Mr. O'Hara had express intentions to go to the Country Club, have dinner and relax in preparation for another trial the next day. He expressed his intentions to send the appellant back to the court room alone to take the jury verdict when word was received. They arrived at the Country Club at approximately 7:20 o'clock P.M. and had one and a half or two drinks when a call came reporting that the verdict had been reached. At this point Mr. O'Hara decided to return with the appellant to the court room to receive the verdict. The appellant and Mr. O'Hara drove from the Country Club to the court house in Mr. O'Hara's automobile, leaving the appellant's automobile at the Country Club. The verdict was announced at approximately 8:30 o'clock P.M. and the two left the court room shortly and returned to the Country Club in Mr. O'Hara's automobile. They arrived at the Country Club at approximately 9:30 o'clock P.M. and had another drink or two and were later joined by the Special Judge who had tried the case. At that time the trial, verdict and certain incidents that occurred during the trial were generally discussed. The appellant excused himself between 11 and 11:15 o'clock P.M. At approximately 11:30 o'clock P.M. the appellant was involved in a serious one car automobile collision on a route between the Country Club and home, resulting in amnesia which blotted out his memory of the accident and certain events preceding it. The Country Club is located southwest of and outside the City of Fort Wayne and the appellant resided on the west side of the City of Fort Wayne. In traveling between the firm's office in downtown Fort Wayne and his home the appellant's usual route was U.S. Highway 24, a major dual lane thoroughfare running generally west to southwesterly, a distance of three or four miles. The Country Club was located southwest of the city about eight miles from the firm's office. The distance between the employer's club outside the city and the appellant's home is about four miles and is reached by a curving narrow road through rural and semirural areas. At the place of the accident. the road curved and was very narrow and was just wide enough for two cars to pass.

There was extensive evidence in regard to the nature and circumstances of the appellant's employment. It was indicated by one of the partners that the appellant and other associates were treated as professional men and were not clock-worker employees and were given a good deal of freedom. (It might be emphasized that in the appellees' brief there is contained ten pages of corrections and additions to the appellant's statement of the case. These corrections and additions are expressly accepted by the appellant in his reply brief).

The correct standard for review by this court which is applicable here was stated in Moore v. L. O. Gates Chevrolet, Inc., 140 Ind.App. 672, 225 N.E.2d 854, 855 (1967), as follows:

'This being a negative finding against the appellants who had the burden of proof, the question to be decided is whether the evidence entitled appellants to the relief which was denied them by the award. Shaffer v. Indiana Gas and Chemical Corporation (1965), 137 Ind.App. 471, 209 N.E.2d 919.

The award of the Board cannot be set aside in this case unless all the evidence is undisputed and not contradicted and leads inescapably to the sole conclusion that the appellant was entitled to an award under our Workmen's Compensation Act. Wright v. Peabody Coal Co. (1948), 225 Ind. 679, 686, 77 N.E.2d 116.'

See also, LeMasters v. Evansville-Vanderburgh Co. Air A. Dist., Ind.App., 263 N.E.2d 301 (1970), B.P.O. Elks #209 v. Sponholtz, Ind.App., 244 N.E.2d 923 (1969), Lockwood v. Board of Trustees, Speedway Methodist Church, Ind., 246 N.E.2d 774 (1969), Weeks v. Wa-Nee Community Schools, Ind.App., 250 N.E.2d 258 (1969), and Tichenor v. Bryant Lumber Co., Ind.App., 261 N.E. 78 (1970).

The case relied upon principally by the Appellant is the decision by our Supreme Court in Marshall v. Tribune-Star Pub. Co., Ind., 243 N.E.2d 761, 762--763 (1968), where our court stated:

'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 theefrom, 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 * * *.'

Since the Marshall case is the only case cited by the Appellant in which both the Appellate and Supreme Courts reversed the Industrial Board's denial of a claim on the basis that the unrebutted evidence demonstrated that the...