Livers v. Graham Glass Co.

Curtis, J. — This is an appeal from the action of the full Industrial Board denying appellants’ application for an award of compensation for the death of James T. Livers (husband and father of appellants), which death was alleged to have been caused by reason of an accident arising out of and in the course of his employment by the Graham Glass Company (appellee herein). To the application of appellants, appellee .filed an answer in two paragraphs. The first paragraph was a general denial, while the second paragraph pleaded the special defenses of intoxication and the commission of a misdemeanor. The evidence is practically undisputed and is in substance as follows: James T. Livers, deceased, was, on and before February 18, 1928, employed as general superintendent of a glass factory owned by the Graham Glass Company. The factory was operated twenty-four hours each day and deceased was subject to call at any time, day or night. It was his custom to call at the factory shortly after. 6 o’clock P. M. each day for the purpose of “checking up” on the day’s work. Appellee company owned a Dodge automobile which was used *360 by deceased for transportation purposes, and in the carrying on of his duties under his employment. He was privileged to use it at his own discretion. The automobile, when not in use, was kept in a garage at appellee’s factory. On February 18, 1928, when he left his home at about 12:45 o’clock P. M. he told his wife he was going to the factory. (It is not shown whether he went to the factory at that time or not.) The evidence further shows that deceased, on the afternoon of February 18, 1928, was at a “place where they sold drinks”; that he remained at such place until about 6 o’clock p. M. that afternoon; that while there, James T. Livers had seven or eight drinks of beer and possibly some other liquor; that he left the place at about 6 o’clock P. M. and told witnesses he was going back to the plant. The deceased left the drinking place in the Dodge sedan owned by appellee company and before he reached the factory, his automobile, the Dodge, collided with a street car and deceased was killed. This accident occurred shortly after 6 o’clock p. M., February 18, 1928. Upon this evidence, the full board found “that the death of plaintiff’s decedent, James T. Livers, was not the proximate result of a personal injury arising out of and in the course of his employment by the defendant, as alleged in plaintiffs’ application, but was due to other causes and the finding herein should be for the defendants.” An order denying compensation was accordingly entered upon this finding. Appellants argue that the Industrial Board failed to find in favor of appellee with reference to appellee’s defenses of intoxication and the commission of a misdemeanor, as pleaded in their second paragraph of answer, and that a failure to find on these issues was equivalent to a finding against the appellee on this issue. But appellee contends that the clause in the finding “but was due to other causes” must *361 be construed as a finding that his death was due to the other causes as set out in appellee’s special answer. We cannot agree with appellee’s contention. An employee’s intoxication and' his commission of a misdemeanor are by statute (Acts 1915, p. 392, §8, Burns 1926, §9543, which was supplanted by Acts 1929, ch. 172, p. 536, §8), made special defenses and must be specially pleaded. In such a case, a failure to make a finding specifically on such defenses is equivalent to a finding against the pleador on that issue, upon whom rests the burden of proof. See Raynes v. Staats-Raynes Co. (1917), 68 Ind. App. 37, 119 N. E. 809; S. J. Peabody Lumber Co. et al. v. Miller et al. (1922), 77 Ind. App. 251, 133 N. E. 591; Chicago, etc., R. Co. v. Kaufman (1921), 78 Ind. App. 474, 133 N. E. 399; Hufford v. Livingston (1922), 79 Ind. App. 519, 137 N. E. 279; American Chain Co. v. Salters (1923), 80 Ind. App. 410, 140 N. E. 435. Appellants further argue that the order of the full board is contrary to law for the reason that the evidence is uncontradicted that appellants’ decedent was killed while performing a duty reasonably connected with the discharge of his duties as general superintendent of appellee company and that such accident arose out of and in the course of his employment. The evidence is without conflict that the deceased was employed as general superintendent of appellee’s glass factory; that his hours of employment were unlimited and that he was subject to call at any hour, day or night; that appellee company owned a Dodge automobile which was used by deceased when he saw fit to do so; that the factory was operating twenty-four hours per day; that it was decedent’s custom to return to the factory shortly after 6 o’clock P. M. to “check up”; that he was driving the Dodge automobile owned by appellee when the accident occurred; that it was near 6 o’clock when the acci *362 dent occurred; that one of his friends was following him for the purpose of taking him home from the factory and that, shortly before the accident, he had said that he was going to the factory. It appears that it was purely discretionary with the decedent as to whether he should return to the factory at 6 o’clock or not. Hence it appears that whether the employment of deceased demanded his presence at the factory at the time he was injured was, to a large extent, subject to his own determination, and that whether he came to such a determination is an important question. The evidence as set out, supra,, shows that decedent had come to such a determination before the accident occurred. The decedent was rendering services in the direct line of his duty to his employer, appellee, at the time the accident occurred, and it makes it none the less a duty even though it arose out of a required exercise of discretion by the employee, the decedent, himself. See Union Oil Co. v. Industrial Accident Comm. (1931), 211 Cal. 398, 295 Pac. 513; Kelling v. Froemming Bros. (1926), 287 Pa. 471, 135 Atl. 129. It has been held a number of times by this court that in cases of this character there are five facts which must be found as a legal basis for an award of compensation. The essential facts are: (1) That claimant was an employee; (2) that he received an injury by accident; (3) that the accident arose out of and in the course of the employment; (4) the character and extent of such injury; and (5) claimant’s average weekly wage. See Muncie Foundry and Machine Company v. Thompson (1919), 70 Ind. App. 157, 161, 123 N. E. 196; Malton et al. v. Malton et al. (1931), 92 Ind. App. 350, 175 N. E. 369. In the instant case, the Industrial Board’s finding of facts fails to include the five essential facts upon which an award could be based. In view of the particular facts *363 of the case at bar, it appears to us that the ends of justice will more nearly be met in the instant case by directing a rehearing before the board. The award of the Industrial Board is reversed, with directions to the board to vacate and set aside the order made by the full board and for further proper proceedings not inconsistent with this opinion. Kime, J., not participating.