Volume 133 — Indiana Appellate Court Reports

1. APPEAL — <italic>Workmen's Compensation — Assignment of Errors —</italic> <italic>Sufficiency of Evidence — Statutes.</italic> — Assignment of error in review of Workmen's Compensation award that the award is not supported by sufficient evidence presents no question since Section 40-1512, Burns' 1952 Replacement, provides that assignment that award is contrary to law presents both sufficiency of facts found and sufficiency of evidence to sustain the facts. p. 89. 2. APPEAL — <italic>Workmen's Compensation — Negative Award of</italic> <italic>Industrial Board — Burden of Proof.</italic> — A negative award by the Industrial Board cannot be successfully attacked on the ground that there was a lack of evidence to support it, for a denial of an award against a party having the burden of proof does not rest upon the quantum of evidence. p. 90. 3. WORKMEN'S COMPENSATION — <italic>Liberal Construction — Burden of</italic> <italic>Proving Ultimate Facts.</italic> — Although the Workmen's Compensation Act will be given a liberal construction, this does not relieve the claimant from the burden of proving every ultimate fact which is necessary to establish his claim in order to legally justify the Industrial Board in granting an award. p. 90. 4. WORKMEN'S COMPENSATION — <italic>Injury — In and Out of Course of</italic> <italic>Employment — Facts and Circumstances of Each Case.</italic> — Whether or not an alleged injury may arise out of and in the course of a claimant's employment depends upon the particular facts and circumstances of each case, and the pertinent law applicable thereto. p. 90. 5. WORKMEN'S COMPENSATION — <italic>Injury Must Arise Out of and In the</italic> <italic>Course of Employment to be Compensable — Risk Incidental to</italic> <italic>Employment.</italic> — To be compensable an injury must arise out of and in the course of employment and it is insufficient to merely show employment and an injury during the period of employment, but the claimant must go further and show by evidence having probative value that the injury had its origin in a risk connected with the employment and that it flowed from the source as a rational consequence. p. 92. 6. APPEAL — <italic>Workmen's Compensation — Administrative Law and</italic> <italic>Procedure — Conflicting Evidence.</italic> — The Appellate Court cannot disturb the decision of the Industrial Board, unless reasonable men would be bound to reach a different conclusion on the evidence. p. 94.<page_number>Page 87</page_number> 7. WORKMEN'S COMPENSATION — <italic>Injury — In and Out of Course of</italic> <italic>Employment — Acts of Comfort and Convenience Incidental to</italic> <italic>Employment.</italic> — Such acts as are reasonably necessary to the life, comfort, and convenience of a workman, though personal to himself, and not technically acts of service, may be incidental to service. If so, an accident occurring in the performance of such an act is deemed to have arisen out of the employment. p. 94. 8. APPEAL — <italic>Administrative Law and Procedure — Decision of</italic> <italic>Industrial Board — Weighing Evidence.</italic> — The Appellate Court is not authorized to weigh the evidence, nor to substitute its decision for that of the Industrial Board. p. 95. 9. WORKMEN'S COMPENSATION — <italic>Injury — In and Out of Course of</italic> <italic>Employment — Risk Incidental to Employment — Automobile</italic> <italic>Accident.</italic> — Where the record discloses evidence that decedent, heavy equipment operator, kept his own time records, the employer did not furnish transportation to and from the job sites, decedent's time normally began when he arrived and ended when he left the job site but there is also evidence that decedent would return to employer's place of business two or three times per week for various reasons, picking up grease, fuel and replacement parts and on each of these occasions decedent was driving his own automobile and would transport these supplies to the job site, it was the prerogative of the Industrial Board to determine whether or not at the time of the fatal automobile accident on a highway in the front of the premises of the employer the decedent was in the course of his employment, and an award denying compensation will not be disturbed on appeal. p. 95.