Marshall v. Tribune-Star Publishing Co., Inc.

236 N.E.2d 508, 142 Ind. App. 556, 1968 Ind. App. LEXIS 598
CourtIndiana Court of Appeals
DecidedApril 30, 1968
Docket667A17
StatusPublished
Cited by18 cases

This text of 236 N.E.2d 508 (Marshall v. Tribune-Star Publishing Co., Inc.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marshall v. Tribune-Star Publishing Co., Inc., 236 N.E.2d 508, 142 Ind. App. 556, 1968 Ind. App. LEXIS 598 (Ind. Ct. App. 1968).

Opinions

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 [558]*558that 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 [559]*559heard 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:

1. Whether plaintiff-decedent’s accident arose out of and in the course of his employment with the appellee.
2. The average weekly wage of plaintiff’s decedent.

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:

“. . . That on May 12, 1961, the claimants’ decedent, Raymond J. Marshall, received injuries resulting in his death, which injuries and death were .caused by an accident arising out of and in the course of his employment with the defendant.
That at the time of his death the decedent’s average weekly wage was $19.00, which amount included an allowance of $5.00 per week for expenses and which allowance was part of the wage agreement between the decedent and the defendant-employer . . .
It is further found that the defendant did not pay the statutory burial expense and that no compensation has been paid by the defendant to the decedent’s dependents, and said judgment hereinbefore obtained against such third party, which is unpaid and unsatisfied, does not relieve the defendant from the payment of the statutory burial expenses and compensation to which the decedent’s dependents are entitled to under the Workmen’s Compensation Law of the State of Indiana.
It is further found that the decedent left surviving him as his sole and only statutory dependents, Dorothy E. Marshall, his widow, who is unmarried, and a minor daughter, Diane Marshall, who remained a statutory dependent until [560]*560November 26, 1965, at which time she married, and from said date she was no longer a statutory dependent and is not entitled to share in any compensation subsequent to November 26, 1965.
The Hearing Member now finds for the plaintiffs and against the defendant on plaintiff’s Form 10 Application filed on May 6, 1963.
AWARD
IT IS, THEREFORE, CONSIDERED, ORDERED, AND ADJUDGED by the Industrial Board of Indiana that the plaintiffs have and recover of and from the defendant compensation at the rate of $18.00 per week, beginning May 12, 1961, for a period of 400 weeks and in no event to exceed the sum of $15,000, exclusive of burial expenses; said compensation to be brought up to date, paid in .cash and in a lump sum . •. .”

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

“. . . The Full Industrial Board of Indiana having heard the arguments of counsel and having reviewed all the evidence in said- cause and being duly advised in the premises therein, now finds:
That on May 12, 1961, the claimants’ decedent, Raymond J. Marshall, was in the employ of the defendant at an average weekly wage of $19.00, which amount included an allowance of $5.00 per week for expenses and which allowance was part of the wage agreement between the decedent and the defendant-employer.
That on May 12, 1961, the claimants’ decedent, Raymond J. Marshall, received injuries resulting in his death, which injuries and death were not caused by an accident arising out of and in the course of his employment with the defendant.
The Full Industrial Board of Indiana now finds for the defendant and against the plaintiffs on plaintiff’s Form 10 Application filed on May 6, 1963.
AWARD
IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Full Industrial Board of Indiana that [561]*561plaintiffs shall take nothing by their Form 10 Application filed on May 6, 1963.
Dated this 9 day of June, 1967.”

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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Construction Management & Design, Inc. v. Vanderweele
660 N.E.2d 1046 (Indiana Court of Appeals, 1996)
Four Star Fabricators, Inc. v. Barrett
638 N.E.2d 792 (Indiana Court of Appeals, 1994)
Evans v. Yankeetown Dock Corp.
491 N.E.2d 969 (Indiana Supreme Court, 1986)
Puckett v. McKinney
373 N.E.2d 909 (Indiana Court of Appeals, 1978)
DeMichaeli & Associates v. Sanders
340 N.E.2d 796 (Indiana Court of Appeals, 1976)
Odle v. Public Service Commission of Indiana
297 N.E.2d 453 (Indiana Court of Appeals, 1973)
Goldstone v. Kozma
274 N.E.2d 304 (Indiana Court of Appeals, 1971)
Burger Chef Systems, Inc. v. Wilson
262 N.E.2d 660 (Indiana Court of Appeals, 1970)
Prater v. Indiana Briquetting Corp.
251 N.E.2d 810 (Indiana Supreme Court, 1969)
Chestnut v. Coca Cola Bottling Co.
145 Ind. App. 504 (Indiana Court of Appeals, 1969)
Chestnut v. COCA COLA BOTTLING COMPANY OF INDIANAPOLIS
251 N.E.2d 575 (Indiana Court of Appeals, 1969)
Rankin v. Industrial Contractors, Inc.
246 N.E.2d 410 (Indiana Court of Appeals, 1969)
Marshall v. Tribune-Star Publishing Co.
243 N.E.2d 761 (Indiana Supreme Court, 1969)
Marshall v. Tribune-Star Publishing Co., Inc.
236 N.E.2d 508 (Indiana Court of Appeals, 1968)

Cite This Page — Counsel Stack

Bluebook (online)
236 N.E.2d 508, 142 Ind. App. 556, 1968 Ind. App. LEXIS 598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-tribune-star-publishing-co-inc-indctapp-1968.