U.S. Fiber Glass Industries v. Uland

• Decision Date: 03 May 1965
• Docket Number: No. 2,No. 20304,20304,2
• Citation: 137 Ind.App. 278,206 N.E.2d 385
• Parties: U. S. FIBER GLASS INDUSTRIES, Appellant, v. Ann S. ULAND, Appellee
• Court: Indiana Appellate Court

Page 385

206 N.E.2d 385

137 Ind.App. 278

U. S. FIBER GLASS INDUSTRIES, Appellant, v. Ann S. ULAND, Appellee.

No. 20304.

Appellate Court of Indiana, Division No. 2.

May 3, 1965.

Rehearing Denied June 7, 1965.

[137 INDAPP 278]

Bamberger, Foreman, Oswald & Hahn, Evansville, for appellant.

Herbert F. Naville, New Albany, for appellee.

HUNTER, Judge.

This is an appeal from an award of [137 INDAPP 279] maximum compensation entered by the full Industrial Board for the benefit of Ann S. Uland, widow, and six (6) minor dependent children of the decedent, John Uland together with burial benefits.

A condensed recital of the undisputed evidence reveals the following facts: John Uland was general manager of the U. S. Fiber Glass Industries, the appellant corporation; Edward J. Doyle was the sales representative of Royal, Incorporated, Midwest, which company was a distributor or supplier of plastic raw materials used in the fiber glass industry; Edward J. Doyle, in his capacity as sales representative, had made two or three visits to appellant's place of business in Vincennes prior to September 30, 1961 for the purpose of convincing John Uland, as general manager of the appellant corporation, that he should purchase appellant's supply of raw materials from Royal, Incorporated, Midwest, rather than the then existent supplier for said corporation; and Edward J. Doyle, as sales representative for said Royal, Incorporated, Midwest, was attempting to convince the decedent, John Uland, that by reason of the close proximity of his company to the appellant corporation that his company could perform better and more efficient service in the supplying of raw materials.

Approximately one week prior to September 30, 1961, Doyle invited Uland to come to South Bend to attend the Notre Dame-Oklahoma football game. His expressed intention and purpose was to create a stronger personal relationship with the decedent in an effort to obtain a part of the business of the appellant corporation in the sale of raw materials to said corporation. The decedent, John Uland, accepted said invitation and made the trip to South Bend in his brother's private plane where he was met by Doyle at the airport, [137 INDAPP 280] taken to lunch and thereafter attended the Notre Dame-Oklahoma football game. Appellee's decedent was forced to leave the game and commence his return flight because of inclement weather and while en route back to Vincennes the plane crashed and he sustained fatal injuries.

During a part of the time at the airport and from the airport into the City of South Bend, Doyle and Uland discussed at some length the matter of purchasing raw materials from Doyle's employer, Royal, Incorporated, Midwest.

The finding of the Industrial Board was that the death of appellee's decedent arose out of and in the course of his employment as general manager of the appellant corporation and the Board entered a maximum award for the benefit of the widow and the minor dependents of the decedent, John Uland. From the uncontradicted evidence in this case, we are of the opinion that the Board could have found that the decedent in his managerial capacity with his company was exercising his prerogative and judgment in accepting the invitation to discuss business relationships and also to attend the football game, such a determination could be sustained solely on the testimony of Edward Doyle who testified as follows: 'My purpose in asking Mr. Uland to come to South Bend was to discuss this fiber glass sale with him.' There was also uncontradicted and direct evidence that John S. Uland as general manager '* * * pretty well ran the whole operation.' The facts before the Board and reasonable inferences to be drawn therefrom were sufficient for the Board to determine that Uland had wide discretion in his dealings with other persons in regard to his company in his capacity as general manager of U. S. Fiber Glass Industries.

[137 INDAPP 281] The appellant relies principally upon the case of Tom Joyce 7 Up Company v. Layman (1942), 112 Ind.App. 369, 44 N.E.2d 998 in arguing that the decedent's death did not as a matter of law arise in the course of his employment. In Tom Joyce, supra, the appellee was employed by appellant at its '7 Up' bottling plant as a driver-salesman. Appellee's duties required him to sell appellant's product, solicit new busines and place signs advertising appellant's product. The employee joined a bowling team organized by an independent distributor at the distributor's sole request. The bowling team was known as the '7 Up Team' and was in competition with other teams that bore the names of other soft drinks. As stated in that opinion '* * * 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 * * *' On a trip to his home from bowling on the '7 Up Team' appellee was injured in an automobile accident. The Board allowed workmen's compensation for such injury.

In reversing the Board's determination in that case, the Appellate Court stated on p. 376, 44 N.E.2d on p. 1000:

'Before an injury is in the course of the employment, the employee must be fulfilling the duty of the employment or be engaged in doing something incidental to it. The evidence does not establish that the appellee was doing this.'

As can be seen from an examination of the Tom Joyce case, it is not authority requiring us to reverse the finding of the Board in the instant case. The most basic distinguishing factors between Tom Joyce and this case seem to be that: here we have an employee in a managerial capacity who has authority to act under his own discretion in regard to company matters[137 INDAPP 282] whereas in Tom Joyce the driver-employee had definite duties one of which was not necessarily to join a bowling team; further, the employee in Tom Joyce did not seem to occupy a managerial position...