Gill v. JAMES A. GILL & SONS ETC.

Myers, P. J.

I dissent from the opinion of the majority for the reason that I believe the Full Board committed an error at law when it determined that the injuries suffered by appellant did not arise out of and in the course of his employment.

The undisputed facts show that appellant was an employee in appellee’s Funeral Home, acting as an em*6balmer. He was subject to call at all times. On the night of December 23, 1955, appellant had worked in the mortuary from 11:00 p.m. until around 1:00 o’clock a.m., when he returned to his home and went to bed. About 3:00 o’clock of the same morning he received a call that some one else had died in the hospital and that his services were needed at the mortuary. After having had only about an hour and a half’s rest, appellant dressed himself and drove directly to the Funeral Home. There he found his brother, who, as his employer, told appellant that he and his son would go to the hospital and pick up the body. According to appellant’s testimony, the brother then said to appellant:

“. . . and for me to go ahead and get a cup of coffee and be back so they could take over.”

On direct examination, James C. Gill, the brother, testified as follows:

“. . . 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’.” (Our emphasis.)

The nearest restaurant open at that time of the morning was approximately one-half mile away from the mortuary. Appellant got into his automobile and on his way there was struck by a train at a railroad crossing.

There was testimony to the effect that there is a custom among mortuaries that embalmers eat a sandwich or drink a cup of coffee or some other stimulant before starting to work. There was conflicting evidence as to whether or not this was the custom in appellee’s mortuary. I do not consider the matter to be of any *7importance in this case, as the only question is whether appellant was acting pursuant to his employer’s orders and directions.

This is not a case where the appellant committed an act solely for his personal comfort and enjoyment, or an act which was not for the service of his employer, but only incidental thereto. Nor, in my opinion, were his actions in driving to get a cup of coffee a departure from or an abandonment of his job. Appellant had been working until 1:00 o’clock in the morning. He was recalled two hours later. It was pointed out that an embalmer’s job requires a certain amount of skill and alertness. Upon being recalled to the mortuary, appellant responded immediately. Upon his arrival, his employer, knowing the short amount of rest that he had had, acted reasonably and in most natural fashion by directing him to refresh himself with a cup of coffee in order to be prepared to do his job. It was important to the business that the embalming be done properly. Thus, his brother directed him to get a cup of coffee “so you won’t be weak.” It was equally as much benefit to the employer-brother as to appellant that the coffee should be consumed by appellant. Consequently, the trip which he undertook to get the coffee was not for his own accommodation or advantage, but was conducive to the proper conduct of his work that early morning.

This is not a case where an employee was coming to or going from work. Appellant was on the premises of the place of his employment, and left them at the express direction of his brother, who was his employer. If an employee is injured while carrying out the reasonable orders of his employer, it makes no difference whether he is on the employer’s premises or anywhere near them. Small’s Workmen’s Compensation Law of *8Indiana, ch. VII, §7.7, p. 172. The rule is specifically stated in the case of Emmons v. Wilkerson (1950), 120 Ind. App. 100, 106, 89 N. E. 2d 296, 299, as follows:

“There is an exception to the general rule, in that, an employee, while he is performing, or is on his way home after performing, or is on his way from his home to perform some special service or errand, or some duty incidental to the nature of his employment in the interest of, or under the direction of his employer, sustaining an accidental injury, is considered to have suffered an injury arising out of and in the course of his employment.”

See, also, 99 C. J. S., Workmen’s Compensation, §234d., p. 828.

I am aware that the Board’s determination is conclusive as to all questions of fact, and that if it is supported by some competent evidence it should not be disturbed. This court, however, has reversed the Board when it has found from the undisputed facts that there was only one conclusion to be drawn, which was contrary to that of the Board. Rogers v. Rogers (1919), 70 Ind. App. 659, 122 N. E. 778; Fleeger v. Nicholson Brothers (1935), 100 Ind. App. 103, 105, 106, 192 N. E. 842, 843. In the latter case this court said as follows:

“The controlling question before the board is, was Fleeger engaged in the business of his employers at the time of the accident. From the undisputed evidence as shown there is only one result which can be logically reached. We are not unmindful of the rule which permits the Industrial Board to draw inferences from the facts proven, but in face of the testimony, from one of the employers, that Fleeger was on duty at the time of the accident, any other inference than that he was engaged in business of his employers would be illogical and contrary to law.”

*9When we are faced with the testimony of both appellant and appellee to the effect that after appellant had arrived at the mortuary for working purposes, he was directed by his employer to go get some coffee so he wouldn’t be “weak,” the only reasonable inference that can be drawn is that his employer wanted him to be physically alert and awake to adequately perform the forthcoming embalming job. Thus, the only conclusion that can be arrived at from the undisputed facts is that the injuries suffered by appellant arose out of and in the course of his employment, and that the Board’s decision was contrary to law.

Note. — Reported in 159 N. E. 2d 734.