Tom Joyce 7 Up Co. v. Layman

• Decision Date: 30 November 1942
• Docket Number: 17031.
• Citation: 44 N.E.2d 998,112 Ind.App. 369
• Parties: TOM JOYCE 7 UP CO. v. LAYMAN.
• Court: Indiana Appellate Court

44 N.E.2d 998

112 Ind.App. 369

TOM JOYCE 7 UP CO. v. LAYMAN.

No. 17031.

Appellate Court of Indiana, in Banc.

November 30, 1942

Appeal from Full Industrial Board.

John A. Bachl, of Indianapolis, Ortmeyer, Bamberger &amp Ortmeyer, of Evansville and David Madill, of Indianapolis, for appellant.

French Clements, of Evansville, for appellee.

BEDWELL Judge.

In this cause a majority of the full Industrial Board awarded appellee compensation. The sole question presented on appeal is whether there is any evidence that the injury of appellee for which he was awarded compensation, was, "by accident arising out of and in the course of the employment."

The facts were in the main without dispute. They disclosed the following: Appellant is engaged in making a soft drink known as "7 Up." On September 26, 1941, the appellee was employed by appellant at its bottling plant at Evansville Indiana, as a driver-salesman. As such his duties required him to sell product of appellant, solicit new business, and to hang up signs advertising its product. His average weekly wage was $20. On such date Edward Utley was an independent distributor in Henderson, Kentucky, who sold and distributed appellant's product. He was sole distributor thereof in the particular county where Henderson is located, but received no salary from appellant. He bought the "7 Up" needed and paid cash therefor.

Prior to such date and in August, 1941, Mr. Utley had organized a bowling team known as the "7 Up Team" to bowl at the King Pin Bowling Alley at Henderson, in competition with other teams that bore the names of other soft drinks. He had requested appellee and another employee of appellant named John J. Van Cleve, and appellant's manager at its Evansville office, to join the team, at the time of its organization, and they had consented.

On the night of September 26, 1941, or in the early morning of September 27, 1941, the appellee was returning to Evansville, Indiana, from Henderson, Kentucky, in an automobile with John J. Van Cleve where both had bowled upon the "7 Up Team" organized by Mr. Utley. On such return trip, and while they were on the bridge across the Ohio River, they were injured in an automobile accident for which injury compensation was allowed herein.

The evidence disclosed that when the appellee and others bowled upon the bowling team that they wore sweaters or shirts furnished by appellant to all of its employees, displaying an emblem or slogan advertising appellant's product; that there was a sign at the bowling alley advertising appellant's product and it was sold there. There was also testimony from which it might be inferred that one of the purposes of appellee in bowling upon such bowling team was to aid in the advertising of appellant's product, but there was no evidence from which it could be inferred that the employment of appellee by appellant required or contemplated his participation as a member of the bowling team, or that expense money, compensation or reward of any nature or character was paid or granted to him because of his participation, or that he participated thereon during his regular hours of employment. A fair inference from the evidence was that the maintenance of such bowling team was beneficial to appellant as well as to Mr. Utley, the independent distributor, in that it advertised and presumably increased the sale of appellant's product. The bowling alley was a public place; there was an audience present at the bowling contests, and all the members of the "7 Up Team" were employees of appellant or of Utley.

Section 2 of our Workmen's Compensation Act, Acts 1929, ch. 172, sec. 2, p. 536, Acts of 1937, ch. 214, sec. 7, p. 1067, Burns' R.S.1933, sec. 40-1202, Baldwin's Indiana Statutes Supp.1937, sec. 16378, p. 3596, provides that: "Every employer and every employee, except as herein stated, shall be presumed to have accepted the provisions of this act respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment, and shall be bound thereby; * * *." (Our italics.)

It will be noted that under this section of the statute an injury to be compensable must both arise out of and be in the course of the employment. Neither alone is enough.

In the case of Burroughs Adding Machine Co. v. Dehn, Ind.App., 1942, 39 N.E. 2d 499, we discuss rules that have been applied in a number of decisions in this and other jurisdictions for the purpose of determining whether the particular injury by accident was one "arising out of" the employment.

In the case of Lasear, Inc., v. Anderson, 1934, 99 Ind.App 428, 192 N.E. 762, 765, this court quotes from Jeffries v. Pitman-Moore Co., 1925, 83 Ind.App. 159, 147 N.E. 919, the following definition of when an accident occurs "in the course of" the employment: "This court has correctly held that an accident occurs in the course of the employment, within the meaning of the Compensation Act, when it takes place within the period of the employment, at a place where the employee may...