The appellant, Edward Gill, filed his application for workmen’s compensation, alleging that he received personal injuries by reason of an accident arising out of and in the course of his employment. *3Appellant was employed as a mortician by appellee, James A. Gill & Sons, a partnership consisting of W. Hayes Gill and James C. Gill.
Trial and hearing were had before a member of the Board, in which appellant was awarded compensation, and appellee filed its application for review by the full Board. The full Board found that the appellant sustained personal injuries by reason of an accident which did not arise out of and in the course of his employment.
Appellant challenges the award of the full Board as being contrary to law.
The evidence discloses that the appellee operated a funeral home in Washington, Indiana, and that the appellant was a mortician employed by appellee. On the night of December 23, 1955, appellant was called to work about 11:00 P.M. and finished his duties at 1:00 A.M. on December 24, 1955. He returned to his home and about 3:00 o’clock in the morning he received a call that someone else had died, so he returned to the funeral home and found that his brother was there. Appellant then testified:
“. . . And he (the brother) said that he and his boy would go on to the hospital and pick up the body and for me to go ahead and get a cup of coffee and be back so they could take over.”
The appellant then got in his car, and on his way to a restaurant was struck by a train.
On direct examination appellee, James C. Gill, testified:
“. . . When we got to the office Ed drove up and I told him to go ahead and get a cup of coffee, ‘so you won’t be weak, and Buddy and I will go get Mrs. Allen’.”
*4There was testimony indicating that after the embalmer gets the body and removes it to the mortuary that it is the usual custom for the embalmer to get a sandwich or stimulant before starting work. There was also testimony that such was not the custom and that no stimulant was required before a person could embalm a body and that the practice of eating before embalming depended entirely upon the time of day.
Appellant urges that the accident would not have happened but for his employment, and that food and drink were necessary to the performance of his employment and that therefore he was performing an act beneficial to himself and his employer.
Judge Ax, speaking for this Court, in Markley v. Richmond Glove Corporation (1959), 129 Ind. App. 325, 156 N. E. 2d 407, 413, has stated the rule as follows:
“The line of liability upon an employer for workers who have no duties to perform for their employer outside of the job site has been drawn at the employer’s premises. The sitution is otherwise where the employee has duties to perform away from the job site. This rule provides a definite standard by which liability can be determined.”
The instant case falls within this rule unless appellant shows that it comes within the exception to the rule of performing duties of employment away from the job site.
Here the appellant was on his way to get coffee and from the evidence the Board could conclude that such was or was not part of the duties of his employment.
*5*4The question of whether or not an injury arises out of and in the course of the employment is a question *5of fact. The burden of establishing such fact rests upon the claimant and on appeal we may view only that evidence most favorable to the appellee. Kinsey v. Shelter Manufacturing Corp. (1955), 125 Ind. App. 493, 499, 126 N. E. 2d 267.
A finding and award will not be disturbed upon the evidence unless it is of such a conclusive nature with all inferences reasonably deducible there from as to force a conclusion contrary to that reached by the Board. U.S. Steel Corp. v. Dykes (1958), 238 Ind. 599, 154 N. E. 2d 111.
The Board having determined that the injuries com plained of did not arise out of and in the course of the employment, we cannot say as a matter of law that on the evidence below we would be forced to reach a contrary conclusion.
In so affirming, however, we point out as said by Judge Kelley of this Court in Couch v. Harmon etc. (1959), 129 Ind. App. 459, 157 N. E. 2d 303, 306,
“In so doing, we must not be understood as holding that we would have reversed an award for appellant upon the same evidence.”
Award affirmed.
Ax and Cooper, JJ., concur. Myers, P. J., dissents.
Dissenting Opinion