Olinger Construction Co. v. Mosbey

427 N.E.2d 910, 1981 Ind. App. LEXIS 1711

• Court: Indiana Court of Appeals
• Decided: November 10, 1981
• Docket: 2-581A148
• Status: Published

Opinions

SHIELDS, Judge.

Appellant Olinger Construction Company (Olinger) appeals the decision of the Industrial Board of Indiana (Board) holding the death of Nathaniel Mosbey arose out of and in the course of Mosbey’s employment and awarding compensation to his surviving spouse and dependent children, the appel-lees.¹

The events leading to Mosbey’s death occurred on the night of August 6, 1975. Mosbey was staying in a motel room in Lawrenceburg, Indiana, about 150 miles from his home in Dale, Indiana. He was at the motel because his employment with Ol-inger required him to be in Lawrenceburg at the site of bridge and road construction being done by Olinger.

During the evening of August 6, Bernard Bell, a former employee of Olinger who had been fired four days previously, knocked on the door of Mosbey’s room. Bell had a textbook on carpentry with him and he asked Mosbey to help him with his studies. Mosbey let Bell into his room, whereupon Bell pulled a concealed knife and stabbed Mosbey repeatedly. Mosbey died in the hospital several days later.

Based on these facts, the Board made the following findings:

“It is further found that decedent’s work required him to be at job sites away from his home for days at a time; and, it required him, at the expense, approval and authorization of the defendant, to rent motel rooms at a place of his choice while he was at work and away from home; that on August 6, 1975, the decedent was in one of the said motel rooms when his untimely death occurred.

“It is further found that the defendant was on call twenty-four (24) hours a day to go out to the field to accomplish his job duties and the duties of his employer.

“It is further found that decedent died as a result of an injury sustaned [sic] in an accident growing out of his employment with the defendant while acting in the scope and course of his employment.

“It is further found that at the time of his death, decedent left as his sole and only dependents, his widow, Carol J. Mos-bey, and his sons, William Mosbey, age 17, Daniel Mosbey, age 14, and David Mosbey, age 12, (all at the time of the filing of the Form 10 application, May 6, 1977).”

On appeal Olinger raises the issues of whether the Board’s findings are contrary to the evidence and whether these findings sustain the Board’s conclusion that Mos-bey’s death arose out of and in the course of his employment.

Our first level of review is to determine if the Board’s findings support its conclusion.² We find they do.

Olinger attacks the validity of the conclusion that Mosbey’s death was the result of an injury incurred while acting in the scope and course of his employment. However, the Board’s findings support the contested conclusion.

To be eligible for Workmen’s Compensation in Indiana an employee, or his dependents, must demonstrate his accident arose “out of and in the course of the employment.” IC 22-3-2-2 (Burns Code Ed.) The phrases “out of” the employment and “in the course of” the employment have separate meanings and both requirements must be fulfilled before compensation is awarded.

“ ‘Out of’ portends some probe into causation and the relationship of a particular accident and a particular harm to the employment sought to be charged. The primary inquiry is directed toward the question of whether the accidental injury or death was the outgrowth of the employment, whether it was due to the employment, whether it was work-induced. Generally stated, the rule seems to be that an accident arises out of the employment when there is a causal connection between it and the performance of some service of the employment. A causal connection is established when the accident is shown to have arisen out of a risk which a reasonable person might comprehend as incidental to the employment, or where the evidence shows an incidental connection between conditions under which the employee worked and his resulting injury or death. The phrase, in the course of, requires, on the other hand, some investigation into the work itself and the breadth of its grasp. The principal emphasis is upon the time and place elements, so that ‘in the course of’ the employment might be taken to mean ‘during’ the employment.” (footnotes omitted)

B. Small, Workmen’s Compensation Law in Indiana, § 6.1 (1950).

When applied to one category of employee, the traveling employee, these requirements have received particular interpretation. A traveling employee is one whose job requires travel from place to place or to a place away from a permanent residence or the employee’s place of business. McDonald v. State Highway Dept., (1972) 127 Ga.App. 171, 192 S.E.2d 919. Due to the nature of a traveling employee’s job, the stringency of the “arising out of and in the course of the employment” requirements have been relaxed.

Traveling employees are generally regarded as being in continuous employment (i. e., in the course of the employment) as long as they are traveling for their employer. As the Georgia Supreme Court stated in Thornton v. Hartford Accident & Indemnity Co., (1945) 198 Ga. 786, 32 S.E.2d 816:

“A traveling salesman is taken away from his home or headquarters by his employment; and, because of the nature of his work, he usually can not return home each night. He must of necessity eat and sleep in various places in order to further the business of his employer; and the employer recognizes these necessities and usually pays the expenses of his lodging and meals ...

“While lodging in a hotel or preparing to eat, or while going to or returning from a meal, he is performing an act incident to his employment, unless he steps aside from his employment for personal reasons. Such an employee is in continuous employment, day and night.”

Thus, while the requirement that the accident occur “in the course of” the employment usually means the accident must occur within the period of the employment, because of the special requirements of the traveling employee’s job, the traveling employee is generally held to be in the course of his employment from the time he begins his journey until he returns to his home or permanent place of business unless he embarks on a purely personal errand.³ C & E Trucking v. Stahl, (1962) 135 Ind.App. 600, 181 N.E.2d 21; Business Systems v. Gilfillen, (1950) 120 Ind.App. 565, 92 N.E.2d 868. See also B. Small, Workmen’s Compensation Law in Indiana, § 7.4 (1976 Supp.).

The second statutory requirement, that the accident arise “out of” the employment, has been variously interpreted by Indiana courts. Some decisions require that to fulfill this requirement the employee must show the accident occurred because of an increased risk created by the employment. E. I. DuPont DeNemours v. Lilly, (1948) 226 Ind. 267, 79 N.E.2d 387. This is known as the increased risk theory. This theory requires the employee be exposed to a quanti-tively greater degree of risk than the general public. Although the danger may be the same danger to which the general public is exposed, the employee may recover if, because of his job, he is exposed to it more frequently or for a longer period of time than the public. A. Larson, Workmen’s Compensation Law, §§ 6.30, 9.30 (1978).⁴

Other cases have held if the employee is required to be in the place where the injury occurred and he is in such a place to discharge the duties of his employment, the accident arises “out of” the employment. Burroughs Adding Machine Co. v. Dehn, (1942) 110 Ind.App. 483, 39 N.E.2d 499. This interpretation is known as the “positional risk” doctrine and has been adopted by a growing number of courts. See A. Larson, The Law of Workmen’s Compensation, §§ 6.50, 11.40 (1978). The positional risk theory holds an injury arises out of employment if it would not have occurred if the employee’s job had not required him to be in the place where he was injured. A. Larson, Workmen’s Compensation Law, § 6.50 (1978). Although Indiana courts have not specifically adopted the positional risk theory, the results in several cases indicate they have adopted the theory in traveling employee cases. In Lasear v. Anderson, (1934) 99 Ind.App. 428,192 N.E. 762, Anderson was a truck driver who was ordered to drive a truck from Lebanon, Indiana to Akron, Ohio. The employer gave him one dollar to be used to obtain his “rest.” Anderson rented a cabin in a tourist camp for the night and died of carbon monoxide poisoning or suffocation while he slept. In affirming an award of compensation by the Board, the court stated:

“ ‘The question whether the accident resulting in injury or death in a given case arises out of the employment does not depend upon the minute details of what the employee was doing at the time, but rather upon the question as to whether the accident was due to a hazard to which the employee would not have been exposed apart from the business in which he was employed.’ In re Bollman, supra.”

92 Ind.App. at 434, 192 N.E. at 764-65. The Lasear court went on to state an accident arises out of the employment if there is an “incidental” relationship between the employment and the injury; and that acts which are necessary to the “life, comfort and convenience” of the employee are incidental to the employment; consequently an accident which occurs during the performance of such an act can be said to arise out of the employment. 92 Ind.App. at 434, 192 N.E. at 765.

In Business Systems v. Gilfillen, (1950) 120 Ind.App. 565, 92 N.E.2d 868, Gilfiilen was a traveling salesman who called on customers within a radius of 100 miles around his home in South Bend. Gilfillen’s employer paid his expenses while he was on the road. While traveling Gilfiilen became ill. He checked out of his hotel and told the desk clerk he was going home. Gilfiilen was killed in an automobile accident two hours later. This court upheld the Board’s award of compensation reasoning that, since Gilfiilen was on the road to Sturgis where he had customers to see the next day, the Board might reasonably have inferred Gilfiilen was on the road because of his duties as a salesman. The court found “[ujnder such circumstances the accident which caused his death arose out of and in the course of his employment.” 120 Ind.App. at 569, 92 N.E.2d at 870.

In C & E Trucking Corp. v. Stahl, (1962) 135 Ind.App. 600, 181 N.E.2d 21, Stahl was a truck driver who was ordered to St. Clair, Michigan to pick up a load. Stahl had to wait in St. Clair overnight before picking up his cargo, so he registered in a hotel. Around midnight, after consuming four or five bottles of beer and some hamburgers, Stahl and a friend decided to go out for a hot meal. On the way back to the hotel after the meal, Stahl was killed when he lost control of the truck he was driving. Once again, this court upheld the Board’s finding that Stahl’s surviving dependents should be awarded compensation.

In In re Harraden, (1917) 66 Ind.App. 298, 118 N.E. 142, this court adopted a test which seems to encompass both the “increased risk” and the “positional risk” theories. Harraden was traveling on business for his employer when he slipped and fell on an icy sidewalk. The court first stated:

“Where the employment of the injured person requires him to be at the place where his injury is received, and he is in fact at such place in pursuance of the discharge of the duties of his employment, the risk thereby encountered is held to be incident to such employment, though the injury may have resulted' from conditions produced by the weather to which persons generally in that locality were exposed.”

66 Ind.App. at 304, 118 N.E. at 143.

The court then went on to say:

“While the conditions produced by the weather may in a sense affect all alike in the particular vicinity, yet the fact remains that a person so employed is much more exposed to such hazards than the public generally because of the duties enjoined upon him by his employment and the place or places to which he must necessarily go in the discharge of such duties.”

66 Ind.App. at 304, 118 N.E. at 144.

Whether the rationale is the “positional risk” theory or the belief that the act of traveling exposes an employee to an increased risk of injury, these cases establish the rule in Indiana that an accident which befalls a traveling employee arises out of the employment if the employee is at the place where the accident occurs because of his employment. That is, if he has been sent to a particular place because of his employment or if he is required to be away from his home or his regular place of work because of his job and is engaged in a task incidental to his health, comfort, or convenience, the accident arises out of the employment.

Combining the interpretations of the “arising out of and in the course of the employment” requirements, as they have been applied to the traveling employee in Indiana, leads us to the conclusion that (1) a traveling employee is “in the course of” his employment as long as he is away from home for the benefit of the employer and (2) an accident arises “out of” the employment as long as the employee is at the place the accident occurs because of his employment. We emphasize our conclusion and our resulting holding is limited to traveling employees.

We therefore hold the Board’s findings that Mosbey’s work required him to be away from his home (i. e., Mosbey was a traveling employee) and that the injury resulting in his death occurred in a motel room where he was staying due to his employment support its conclusion Mosbey died from an accident which arose out of and in the course of his employment.

The second level of review requires us to examine the Board’s findings to determine if they are supported by the evidence.

The Board found Mosbey’s work required him to be away from home (i.e., that he was a traveling employee) and thus to stay in a motel. The Board also found Mosbey was in this motel room when he died.

Olinger argues Mosbey was not a traveling employee because his assignment in Lawrenceburg was long-term. We disagree and hold the Board’s finding that Mos-bey was a traveling employee is supported by the evidence.

First, the evidence does not show Mos-bey’s assignment was long-term. Donald Murphy, an Olinger employee, testified Mosbey was not assigned on a regular basis to a specific job, but was assigned as the work was required. Murphy also stated in this instance Mosbey was assigned to the job in Lawrenceburg because it was the biggest thing they had going, but Murphy did not state how long Mosbey had been assigned to the job or how long the assignment was likely to last.

In addition, even if Mosbey had been assigned to the site for an extended time, we see no basis for making a distinction between employees, such as salesmen and truck drivers, who travel from city to city and those, such as Mosbey, who travel to one site and remain there until their specific assignment is completed.

The rationale behind the traveling employee rule is that an employee who is required to travel away from home is furthering the business of his employer as he eats, sleeps, and performs other acts necessary to his health and comfort during his travels. Thornton v. Hartford Accident & Indemnity Co., (1945) 198 Ga. 786, 32 S.E.2d 816. This rationale applies equally to an employee who travels to a fixed location and stays there to do his job. This type of traveling employee is also away from home or headquarters because of his job, so that, in a sense, his activities, such as eating and sleeping in a distant location, are done for the benefit of the employer. Other states have recognized the similarity between the two types of traveling employees. In Wright v. Industrial Commission, (1975) 62 Ill.2d 65, 338 N.E.2d 379, an employee of a company which manufactured industrial machines was sent out of state to help install the machinery. The employee stayed for five or six months at a time while supervising the installation of the machinery. The employer attempted to argue that an employee who remains at one job location for five or six months becomes, in effect, a resident of that location and should no longer be classified as a traveling employee.

The Illinois Supreme Court held:

“[Employer’s] argument is unconvincing. We can find no rational basis to distinguish between the employee who is continuously traveling and one who travels to a distant job location only to return when the work is completed. While it is true that the latter type of employee may become more familiar with the risks inherent in his out-of-town employment because he remains in one locale, the risks are still present. It would be inconsistent to deprive an employee of benefits of workmen’s compensation simply because he must travel to a specific location for a period of time to fulfill the terms of his employment and yet grant the benefits to another employee because he continuously travels.”

Wright at 381. This same conclusion has been reached by courts in other states. See McDonald v. State Highway Dept., (1972) 127 Ga.App. 171, 192 S.E.2d 919 (employee assigned to a site away from home for over a year); Brown v. Palmer Construction Company, (1972) Me., 295 A.2d 263.

At some point a line must be drawn between a traveling employee and one who is permanently assigned and thus becomes a resident of a place where he is assigned to work. In a case such as this, however, where the employee’s job was away from his home and his employer’s offices, where his job location shifted as the employer required, and where the employer paid him on a per diem basis to help cover the cost of living away from home, we cannot dispute the Board’s prerogative in finding the employee is a traveling employee.

Olinger also argues Mosbey was not “required” to rent a motel room because he could have commuted between Dale and Lawrenceburg every day. It is clear from a review of the evidence that, although Olinger may not have specifically required as a condition of Mosbey’s employment that he live close to the job site, Mosbey was nonetheless “required” to live away from home. Since Mosbey’s home was 150 miles from the job site and since he often had work to complete after his regular shift was over and was “on call” 24 hours a day,⁵ Mosbey could not, as a practical matter, have returned to his home each night. Because Mosbey could not return to his home each night because of the requirements of his job, the Board was correct in finding Mos-bey was “required to stay away from home.”

The evidence to support the finding that Mosbey was in his motel room when the attack by Bell occurred is undisputed. There is no evidence Mosbey had departed on any personal errand which would lead to his exclusion from coverage.

The evidence supports the Board’s findings Mosbey was a traveling employee, that is, was required to stay in a motel because of his job and that he was in the motel where he was injured to properly discharge his duties, therefore the Board was correct in allowing benefits from Mosbey’s death.

Affirmed.

BUCHANAN, C. J., concurs. SULLIVAN, J., dissents, with opinion.

1 . Nathaniel Mosbey was the husband of appel-lee Carol Mosbey and the father of appellees William, Daniel, and David Mosbey.

2 . Graham v. Review Bd., (1979) Ind.App., 386 N.E.2d 699.

3 . Although the cases do not specifically discuss this exception, it appears clear that a traveling employee can depart from the course of his employment by embarking on a personal errand just as any other employee.

4 . We believe this to be the correct statement of the increased risk theory although, as Professor Small points out, one of the difficulties with the increased risk theory is the difficulty of defining an increased risk. Small states:

“An increased risk might be said by some to be a risk greater than that to which the public generally is subjected. Others might say it is a risk greater than that to which others in the same locality are subjected. Others might say it is a risk greater than that to which other fellow-employees are subjected. And others might say it is a risk greater than that to which the particular workman is normally exposed. There are precedents in the Indiana cases to support any of these positions; and there are precedents which support none of them.”

B. Small, Workmen’s Compensation Law in Indian a, § 6.2 pp. 50-51 (1976 Supp.)

5 . As explained by Mr. Murphy, an Olinger superintendent:

“And it’s an unwritten rule that if you’re a company man and you’re on salary and if you’re needed you get called out. It happens all the time.”

R. p. 52.