Olinger Const. Co. v. Mosbey

• Decision Date: 10 November 1981
• Docket Number: No. 2-581A148,2-581A148
• Citation: 427 N.E.2d 910
• Parties: OLINGER CONSTRUCTION COMPANY, Appellant (Defendant below), v. Carol J. MOSBEY, William Mosbey, Daniel Mosbey, David Mosbey, Appellees(Plaintiffs below).
• Court: Indiana Appellate Court

Page 910

427 N.E.2d 910

OLINGER CONSTRUCTION COMPANY, Appellant (Defendant below), v. Carol J. MOSBEY, William Mosbey, Daniel Mosbey, David Mosbey, Appellees(Plaintiffs below).

No. 2-581A148.

Court of Appeals of Indiana, Second District.

Nov. 10, 1981.

Lynn, Wright, Evans & Daly, Evansville, for appellant.

Rodney H. Grove, Grove, Miller & Krohn, Evansville, for appellees.

SHIELDS, Judge.

Appellant Olinger Construction Company (Olinger) appeals the decision of the Industrial Board of Indiana (Board) holding the death of Nathaniel Mosbey arose out of and in the course of Mosbey's employment and awarding compensation to his surviving spouse and dependent children, the appellees. ¹

The events leading to Mosbey's death occurred on the night of August 6, 1975. Mosbey was staying in a motel room in Lawrenceburg, Indiana, about 150 miles from his home in Dale, Indiana. He was at the motel because his employment with Olinger required him to be in Lawrenceburg at the site of bridge and road construction being done by Olinger.

During the evening of August 6, Bernard Bell, a former employee of Olinger who had been fired four days previously, knocked on the door of Mosbey's room. Bell had a textbook on carpentry with him and he asked Mosbey to help him with his studies. Mosbey let Bell into his room, whereupon Bell pulled a concealed knife and stabbed Mosbey repeatedly. Mosbey died in the hospital several days later.

Based on these facts, the Board made the following findings:

"It is further found that decedent's work required him to be at job sites away from his home for days at a time; and, it required him, at the expense, approval and authorization of the defendant, to rent motel rooms at a place of his choice while he was at work and away from home; that on August 6, 1975, the decedent was in one of the said motel rooms when his untimely death occurred.

"It is further found that the defendant was on call twenty-four (24) hours a day to go out to the field to accomplish his job duties and the duties of his employer.

....

"It is further found that decedent died as a result of an injury sustaned (sic) in an accident growing out of his employment with the defendant while acting in the scope and course of his employment.

"It is further found that at the time of his death, decedent left as his sole and only dependents, his widow, Carol J. Mosbey, and his sons, William Mosbey, age 17, Daniel Mosbey, age 14, and David Mosbey, age 12, (all at the time of the filing of the Form 10 application, May 6, 1977)."

On appeal Olinger raises the issues of whether the Board's findings are contrary to the evidence and whether these findings sustain the Board's conclusion that Mosbey's death arose out of and in the course of his employment.

Our first level of review is to determine if the Board's findings support its conclusion. ² We find they do.

Olinger attacks the validity of the conclusion that Mosbey's death was the result of an injury incurred while acting in the scope and course of his employment. However, the Board's findings support the contested conclusion.

To be eligible for Workmen's Compensation in Indiana an employee, or his dependents, must demonstrate his accident arose "out of and in the course of the employment." IC 22-3-2-2 (Burns Code Ed.) The phrases "out of" the employment and "in the course of" the employment have separate meanings and both requirements must be fulfilled before compensation is awarded.

" 'Out of' portends some probe into causation and the relationship of a particular accident and a particular harm to the employment sought to be charged. The primary inquiry is directed toward the question of whether the accidental injury or death was the outgrowth of the employment, whether it was due to the employment, whether it was work-induced. Generally stated, the rule seems to be that an accident arises out of the employment when there is a causal connection between it and the performance of some service of the employment. A causal connection is established when the accident is shown to have arisen out of a risk which a reasonable person might comprehend as incidental to the employment, or where the evidence shows an incidental connection between conditions under which the employee worked and his resulting injury or death. The phrase, in the course of, requires, on the other hand, some investigation into the work itself and the breadth of its grasp. The principal emphasis is upon the time and place elements, so that 'in the course of' the employment might be taken to mean 'during' the employment." (footnotes omitted)

B. Small, Workmen's Compensation Law in Indiana, § 6.1 (1950).

When applied to one category of employee, the traveling employee, these requirements have received particular interpretation. A traveling employee is one whose job requires travel from place to place or to a place away from a permanent residence or the employee's place of business. McDonald v. State Highway Dept., (1972) 127 Ga.App. 171, 192 S.E.2d 919. Due to the nature of a traveling employee's job, the stringency of the "arising out of and in the course of the employment" requirements have been relaxed.

Traveling employees are generally regarded as being in continuous employment (i. e., in the course of the employment) as long as they are traveling for their employer. As the Georgia Supreme Court stated in Thornton v. Hartford Accident & Indemnity Co., (1945) 198 Ga. 786, 32 S.E.2d 816:

"A traveling salesman is taken away from his home or headquarters by his employment; and, because of the nature of his work, he usually can not return home each night. He must of necessity eat and sleep in various places in order to further the business of his employer; and the employer recognizes these necessities and usually pays the expenses of his lodging and meals ...

"While lodging in a hotel or preparing to eat, or while going to or returning from a meal, he is performing an act incident to his employment, unless he steps aside from his employment for personal reasons. Such an employee is in continuous employment, day and night."

Thus, while the requirement that the accident occur "in the course of" the employment usually means the accident must occur within the period of the employment, because of the special requirements of the traveling employee's job, the traveling employee is generally held to be in the course of his employment from the time he begins his journey until he returns to his home or permanent place of business unless he embarks on a purely personal errand. ³ C & E Trucking v. Stahl, (1962) 135 Ind.App. 600, 181 N.E.2d 21; Business Systems v. Gilfillen, (1950) 120 Ind.App. 565, 92 N.E.2d 868. See also B. Small, Workmen's Compensation Law in Indiana, § 7.4 (1976 Supp.).

The second statutory requirement, that the accident arise "out of" the employment, has been variously interpreted by Indiana courts. Some decisions require that to fulfill this requirement the employee must show the accident occurred because of an increased risk created by the employment. E. I. DuPont DeNemours v. Lilly, (1948) 226 Ind. 267, 79 N.E.2d 387. This is known as the increased risk theory. This theory requires the employee be exposed to a quantitively greater degree of risk than the general public. Although the danger may be the same danger to which the general public is exposed, the employee may recover if, because of his job, he is exposed to it more frequently or for a longer period of time than the public. A. Larson, Workmen's Compensation Law, §§ 6.30, 9.30 (1978). ⁴

Other cases have held if the employee is required to be in the place where the injury occurred and he is in such a place to discharge the duties of his employment, the accident arises "out of" the employment. Burroughs Adding Machine Co. v. Dehn, (1942) 110 Ind.App. 483, 39 N.E.2d 499. This interpretation is known as the "positional risk" doctrine and has been adopted by a growing number of courts. See A. Larson, The Law of Workmen's Compensation, §§ 6.50, 11.40 (1978). The positional risk theory holds an injury arises out of employment if it would not have occurred if the employee's job had not required him to be in the place where he was injured. A. Larson, Workmen's Compensation Law, § 6.50 (1978). Although Indiana courts have not specifically adopted the positional risk theory, the results in several cases indicate they have adopted the theory in traveling employee cases. In Lasear v. Anderson, (1934) 99 Ind.App. 428, 192 N.E. 762, Anderson was a truck driver who was ordered to drive a truck from Lebanon, Indiana to Akron, Ohio. The employer gave him one dollar to be used to obtain his "rest." Anderson rented a cabin in a tourist camp for the night and died of carbon monoxide poisoning or suffocation while he slept. In affirming an award of compensation by the Board, the court stated:

" 'The question whether the accident resulting in injury or death in a given case arises out of the employment does not depend upon the minute details of what the employee was doing at the time, but rather upon the question as to whether the accident was due to a hazard to which the employee would not have been exposed apart from the business in which he was employed.' In re Bollman, supra."

92 Ind.App. at 434, 192 N.E. at 764-65. The Lasear court went on to state an accident arises out of the employment if there is an "incidental" relationship between the employment and the injury; and that acts which are necessary to the "life, comfort and convenience" of the employee are incidental to the employment; consequently an accident which occurs during the performance of such an act can be said to arise out of the employment. 92 Ind.App. at 434, 192 N.E. at 765.

In Business Systems v. Gilfillen, (1950) 120 Ind.App. 565, 92 N.E.2d 868, Gilfillen was a traveling salesman who called on customers within a radius of 100 miles around his home in South Bend. Gilfillen's employer...