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
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
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. (1967), 140 Ind.App. 672, 225 N.E.2d 854, 855, as follows:
See also, LeMasters v. Evansville-Vanderburgh Co. Air A. Dist. (1970), 147 Ind.App. 674, 263 N.E.2d 301; B.P.O. Elks #209 v. Sponholtz (1969), 144 Ind.App. 150, 244 N.E.2d 923; Lockwood v. Speedway Methodist Church (1969), 144 Ind. 430, 246 N.E.2d 774; Weeks v. Wa-Nee Community Schools (1969), 145 Ind.App. 157, 250 N.E.2d 258 and Tichenor v. Bryant Lumber Co. (1970), 147 Ind.App. 382, 261 N.E. 78.
The case relied upon principally by the Appellant is the
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 claimant-employee's use of his personal automobile was an integral part of his work, it must be distinguished. However, a careful examination of the Marshall case indicates that the facts in this case do not lead to the sole conclusion that the claimant-employee's use of his personal automobile was an integral part of his work at the time and place in question. In Marshall it was the employee's duty as a part of his employment and basically his sole duty to deliver bundles of morning papers to various dropoff points using his own automobile. He was paid a regular car allowance in addition to his salary. At the time of the accident in Marshall the claimant-employee was returning either to his home or to another place of employment (by another employer) from performing these duties of
As a general rule, accidents occurring on the way to or from a place of employment are not compensable because they do not arise out of and in the course of employment. There are exceptions to this rule. One such exception is where the transportation to or from work is furnished by the employer. See Stadler Fert. Co. v. Bennett (1954), 124 Ind.App. 524, 119 N.E.2d 26.
Where an employer requires the employee to use his own automobile in the furtherance of his employment, injuries to the employee incurred while transporting his vehicle to or from the site of employment are compensable. See Pittsburgh Testing Laboratories v. Kiel (1960), 130 Ind.App. 598, 167 N.E.2d 604.
Appellant cites Burger Chef Systems, Inc. v. Wilson (1970), 147 Ind.App. 556, 262 N.E.2d 660 and Kariger Motors v. Kariger, et al. (1961), 132 Ind.App. 85, 173 N.E.2d 916 as supporting the rule that accidents and injuries are subject to arise out of employment where there is
The Appellant further cites Noe, et al. v. Fargo Insulation Co. (1965), 139 Ind.App. 151, 204 N.E.2d 883, where the court spoke of the real test between whether or not the employee at the time of his injuries was subject to the power and control of employer. Appellant then suggest that since the travel to the Country Club was at the "instance" and "direction" of the employer, that he was under the control and direction of his employer when at the club.
In Gill v. James A. Gill & Sons, etc. (1959), 130 Ind.App. 1, 159 N.E.2d 734, the claimant, an embalmer, had been called upon to return to the funeral home and do further work. When he arrived his employer told him to go ahead and get a cup of coffee. The claimant contended that the injuries that he received in an accident while he was on the way to the restaurant to get a cup of coffee and was struck by a train arose out of and within the course of his employment. However, the Appellate Court affirmed the Board's denial of the claim. Likewise in the case of Rohlwing v. The Wm. H. Block Co. (1963), 124 Ind.App. 97, 115 N.E.2d 450, this court noted that the evidence as to the claimant's authority to entertain out of town suppliers was disputed even though the claimant testified that she was doing this under the direction of her employer and affirmed the Industrial Board's denial of compensation.
In Emmons v. Wilkerson (1949), 120 Ind.App. 100, 89 N.E.2d 296, claimant had attended a sales meeting at his employer's place of business in the evening and was involved in an accident while returning to his home. This court affirmed the denial of compensability, holding that based on the evidence it was up to the Board to determine whether or not the injury and accident which occurred on claimant's homeward route after the sales meeting arose out of and in the course of employment.
In further attempt to place the appellant Miller's trip from the Country Club within the course of his employment the appellant cites a number of cases under the continuity of service doctrine which has risen under the Indiana Workmen's Compensation Act. These cases cited by the appellant are Williams v. School City of Winchester (1937), 104 Ind.App. 83, 10 N.E.2d 314 and Livers v. Graham Glass Co. (1931), 95 Ind.App. 358, 177 N.E. 359. Williams as School Superintendent was traveling to another town to attend a school meeting and it was clear at the time of the particular accident the Superintendent was furthering the business of the employer. In Livers a factory superintendent was involved in an accident on his way to the plant in the evening to make a checkup. The continuity of service doctrine normally involves an employee
The Appellant further cites Pittsburgh Testing Laboratory v. Kiel (1960), 130 Ind.App. 598, 167 N.E.2d 604 and Stadler Fertilizer Co. v. Bennett (1954), 124 Ind.App. 524, 119 N.E.2d 26, to sustain its contention that the plaintiff-employee's automobile was an integral part of his employment.
From the case law cited by the Appellant it is clear that the determination as to whether or not the use of an automobile by an employee is an integral aspect of his employment or whether the employee was actually furnishing transportation for the employer are questions of fact normally to be determined by the Industrial Board. For instance, in the Pittsburgh Testing Laboratories v. Kiel case this court was affirming an award by the Board in favor of the plaintiff for injuries he received in an automobile accident on his return to his home. As such it is clearly distinguishable from the facts in this case where this court is being requested by the appellant to reverse such a decision by the Industrial Board. Additionally, the claimant in Pittsburgh Testing Laboratories had to split his time between two different jobs and he received a travel allowance between the job sites of seven cents a mile. There was also conflicting evidence as to whether or not the claimant received a travel allowance for his travel from his home to work and back to his home. This court found that the evidence was sufficient to support
In Marshall v. Tribune-Star Pub. Co., this court and the Supreme Court did reverse the Board's denial of the claim on the basis that the unrebutted evidence demonstrated that the claimant-employee's use of his personal automobile was an integral part of his work. The undisputed facts in Marshall were that the employee was allowed a car allowance in addition to his salary. It was the employee's duty as a part of his employment and basically his sole duty to deliver bundles of the morning papers at various dropoff points using his own automobile. He was returning either to his home or to another place of employment (by another employer) from performing these duties when the accident in question occurred. The facts in Marshall are distinguishable from the facts in this case. There is a dispute in the facts here as to whether or not appellant Miller's use of his automobile was an integral part of his employment. On the day in question, the Industrial Board could have found that he did not use his automobile in his employer's business and was not reimbursed between the office and his home. The Industrial Board could have found as a matter of fact that because of the nature of his employment the use of the automobile was incidental to the performance of his work as an attorney, and not an integral aspect thereof which makes this case clearly distinguishable from Marshall v. Tribune-Star Pub. Co.
Pittsburgh Testing Laboratories and Emmons v. Wilkerson both indicate that there are normally questions of fact to be determined by the Industrial Board. There is evidence from
Counsel for both parties have filed excellent and persuasive briefs, which have been most helpful to the court. The argument of the appellant would be very persuasive to us if we were sitting as members of the Industrial Board. However, we cannot find in the appellant's argument circumstances justifying the reversal of the decision of the Industrial Board as a matter of law.
Therefore, the award of the Industrial Board should be affirmed.
Hoffman, C.J., Sullivan, P.J., and Lowdermilk, J., concur.
This case is before this court for review of an award of the full Industrial Board of Indiana pursuant to the "appeal" provisions of IC 1971, 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, Inc. 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).
We are unable to concur in the opinion written by Judge Sharp for our brethren because it impliedly holds that the Industrial Board has made a "finding of the facts on which ... [its award] is based", as required by section 60 of the Workmen's Compensation Act.
Since that "finding" is so similar to its counterpart in Block v. Fruehauf Trailer Division (146 Ind.App. 70, 1969), 252 N.E.2d 612, 19 Ind. Dec. 489, much of what was said in the dissenting opinion in that case expresses our view of this case.
We concede that the case at bar may be distinguished from Block (and from most cases) in that here we find no dispute or contradiction in the evidence. But, as was said in the Block dissent:
What Judge Sharp has so ably done in his painstakingly detailed analysis of the evidence illustrates the vice inherent in permitting the Industrial Board to shirk its duty to find the facts. For notwithstanding all the valuable time spent at the judicial review level (in doing what the statute says should be done at the administrative review level) we still do not know on what ultimate facts the board based its decision. We know only the evidentiary facts. To fill the void left by the board's failure to state its findings we presume that the board drew those inferences and made those findings which are "right" to support the legal conclusion it reached.
What this court does then, when it reviews an Industrial Board decision, is not to review what the board actually did, but to review what it might have done. In effect, we review the hypothetical findings of a hypothetical board — an ideal board which always draws from the evidence the inference most favorable to the conclusion of law which is its decision. If this hypothetical board ever commits error it must be the mistake of failing to know what evidence it heard; for we insure that it can never err as to the law because we find for it (by presumption) facts which fit only the right rules of law. And so we reverse only when the evidence is insufficient
The constitutional due process (i.e., the fairness) of any remedial statute which provides for administrative adjudication of justiciable controversies rests on its provisions for judicial review.
We should follow the mandate of Cole v. Sheehan Construction Co., supra, and remand this proceeding to the Industrial Board with directions for it to discharge its statutory duty
Buchanan, Robertson, and Staton, JJ., concur.
NOTE. — Reported in 269 N.E.2d 772.