MARSHALL v. TRIBUNE-STAR PUBLISHING CO., INC.

PRIME, J.

The appellants here brought an action to the Industrial Board of Indiana for adjustment of claim for compensation by reason of the death of plaintiff's decedent.

The principal facts were stipulated and may be summarized as follows:

Raymond J. Marshall, the decedent, was employed by the Tribune-Star Publishing Co., Inc., of Terre Haute, Indiana. He was employed as "head carrier." His job was to go to the newspaper plant early each morning to see if the paper boys, or carriers, reported in to receive their papers. It was part of his duty to call the boys if they were not there and see that they got on the job. In case a carrier could not report that day, he reported the reason for absence to his superior. According to the evidence, Marshall did not obtain substitute carriers. The duties mentioned pertained to the carriers who came to the plant to pick up their papers.

The other duty performed by Marshall consisted of delivering other papers to various parts of the city to be picked up by carriers. These he would deposit on certain corners or other designated locations within a certain district or part of the city. It was part of Marshall's job to see that these carriers received their papers and the evidence was that he called the boys on occasion.

This job held by the decedent was a part-time job. He would report about 3 A.M. each morning. He held another job with a milk company where he worked after 7 A.M.

On May 21, 1961, the decedent reported on the job as usual. He picked up his bundles and put them in his car to be delivered to the drop locations.

It was stipulated that Marshall owned his own car, a 1959 Ford, and that his salary was $14.00 per week plus a car allowance of $5.00 per week, a total of $19.00.

On the morning in question, Marshall loaded his car but before leaving he asked one of the carriers, who was at the plant, to go with him on his route. The carrier was a boy named David Schultz, age 16, who testified that his papers were not yet ready at the plant and that Mr. Marshall asked him to go along and that he would bring him back to the plant. With the bundles in the back of the car they started to deliver them on the route.

At 5 o'clock A.M. at the corner of Third and Voorhees Streets a collision occurred with another automobile. The decedent was killed in the accident. The carrier boy was injured but recovered.

The issues were formed by appellant's Form 10 Application for benefits. No special answer was filed. The matter was heard before a Single Member of the Industrial Board and reviewed by the Full Board.

By stipulation the issues to be determined by the Industrial Board were:

The Single Member's Award was for the appellant and upon appellee's application for review the Full Board, without additional evidence, heard arguments and found that the accident did not arise out of and in the course of his employment and entered an award against the appellants.

The average weekly wage of $19.00 was found. Thus, the issue to be resolved is the question of whether or not the accident occurred in the course of decedent's employment.

The findings and award of the Hearing Member were:

Application for review of the award was filed by the defendant and upon review the Full Board entered an award as follows:

The task of determining the meaning of "out of" and "in the course of" employment is certainly not new and has been defined in many decisions of this court.

We cite with approval the case of Whaley v. Steuben County Rural Electric Membership Corporation (1966), 139 Ind.App. 520, 221 N.E.2d 435, 9 Ind. Dec. 407. Another leading case is Tom Joyce 7-Up Company v. Layman (1942), 122 Ind.App. 369, 44 N.E.2d 998, which stated that:

The appellee urges that after the last bundle of newspapers was dropped by the decedent, his duties ended. A witness for the company testified that when he was notified of the accident he immediately went to the last location where the papers were to have been left and that the bundle was there. This does not demonstrate or prove, however, that the decedent had completed his rounds. He could have deposited the papers on the corner and then made other drops. The testimony of the carrier was that there were bundles of papers remaining in the car at the time of the accident. Further, the decedent was traveling on a direct route to the newspaper plant with the carrier in the car who had to be returned to the building to pick up his papers. While the decedent had no obligation to return the boy to the plant, since he was simply a passenger at the invitation of the driver, it seems beyond question that he was returning to the plant during the hours of his employment to-wit: 5 o'clock A.M. This was two hours before his duties were to begin on the other job at 7 o'clock A.M.

Moreover, the cases hold that where an employer requires the employee to use his own car and compensates him for such use, this makes the car an integral part of the employment and the use of the car, even going to and from work, is held to arise out of and be in the course of his employment. Pittsburg Testing Laboratories v. Kiel (1960), 130 Ind.App. 598, 167 N.E.2d 604; Whaley v. Steuben Co. REMC, supra.

The case of Fleeger v. Nicholson Brothers (1934), 100 Ind.App. 103, 192 N.E. 842 held that where a grocery delivery man delivered groceries to his own home 3 miles distant from his employers' store and was killed on the return journey, his injury arose out of and in the course of his employment. Decedent had eaten his lunch at home, but his wife had ordered the groceries and was entitled to the same delivery as other customers. The eminent Justice Cardozo, speaking for the New York Court of Appeals, stated the rule as follows:

When we apply the above test to the undisputed evidence before us there can be but one conclusion: it was the employment of Marshall that sent him forth at 5 o'clock in the morning to deliver the papers of his employer.

The inference that the Board drew that Marshall had completed his job and was not in the course of his employment, simply because a bundle was found at the last corner where he normally left it, is not reasonable. This inference totally disregards testimony and uncontroverted evidence that the decedent was on duty, which the Hearing Member found to be conclusive.

We are not unmindful that the Industrial Board is the sole fact-finding body and that on appeal this court cannot weigh the evidence. Our jurisdiction is limited to the examination of the evidence and inferences therefrom to ascertain whether the findings rest upon a substantial factual finding.

We point out that the Full Board is bound by the same rule when reviewing an award of a Hearing Member. The Full Board may review the evidence of the original hearing, without hearing new or original evidence, at the discretion of the Board. This case was considered only upon the evidence submitted before the single Hearing Member. Thus, the credibility of witnesses should not be weighed.

Rule 18 Industrial Board Procedure.

The case of U.S. Steel Corporation v. Brown (1967), 142 Ind.App. 18, 231 N.E.2d 839, 12 Ind. Dec. 263, a recent opinion by Judge Smith, speaking for this court, is determinative of the issue of whether or not an accident arose out of and in the course of the employment. This case points out the present law as defined by our Supreme Court:

The rule is again reiterated in U.S. Steel Corp. v. Dykes, (1958), 238 Ind. 599, 154 N.E.2d 111.

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. The decision of the Board is reversed and remanded with instructions to grant an award consistent with this opinion.

Judgment reversed.

Bierly and Cooper, JJ., concur.

Pfaff and Smith, JJ., concur in result.

Faulconer, J., dissents with opinion in which Carson, C.J., concurs.

Cook, P.J., not participating.

DISSENTING OPINION

FAULCONER, J.

I cannot concur in a reversal of this award under the facts of this case and the law concerning reviews by this court of awards by the Industrial Board.

As stated in Moore v. L.O. Gates Chevrolet, Inc. (1967), 140 Ind.App. 672, 225 N.E.2d 854, 855, 856, 10 Ind. Dec. 373 (transfer denied), the award of the Board cannot be set aside 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 Workman's Compensation Act.

Whether the accident arose out of and in the course of decedent's employment with appellee was an issue within the province and the duty of the Board to decide. The Board's conclusion, if sustained by competent evidence of probative value or legitimate inferences therefrom, will not be disturbed by this court on appeal. Moore v. L.O. Gates Chevrolet, Inc., supra.

The evidence in the present case concerning the vital issue of whether appellant's decedent was within the scope of his employment when the accident occurred is conflicting. Although we may draw different conclusions or inferences from the evidence than did the Board, our duty is not to substitute our judgment for that of the Board.

In my opinion we cannot state that reasonable men could only conclude, from the evidence in this case and the permissible inferences therefrom, that appellant's decedent was acting within the scope of his employment and that the accident arose out of said employment.

Therefore the award should be affirmed.

Carson, C.J., concurs.

NOTE. — Reported in 236 N.E.2d 508. Transfer denied with opinion 243 N.E.2d 378.