*1 treason, offenses—Offenses, than murder or other “Bailable treason or by sufficient sureties. Murder shall bailable be pre- proof evident, the or the is shall not be bailable when strong.” sumption right bail against admitted to presumption is be show case, on the the burden is in a murder defendant presumption proof evident (1952), 280 guilt strong. State Bozovichar 103 N.E.2d Ind. presented careful evidence
After a review hearing, has failed have concluded that the defendant we evidentiary required by In- carry her burden as supra. Bozovichar case diana Constitution may ultimately Although jury find State’s allegations support insufficient to evidence to be properly indictment, court believe trial acted we refusing to admit defendant to bail. foregoing reasons, For the order of all the Noble Circuit hereby affirmed. Court is C.J., DeBruler, Prentice, JJ.,
Arterburn,
Givan
concur.
Note.—Reported at
Michael Kenneth Gina Renee Jessee May 21, Filed
[No. 1974.] 574S99. *2 Rocap, Rocap, Cunningham, Rocap, Reese & John T. E.T. Indianapolis, appellant. counsel, for Young, all of of n . & Montross, Hovde, Townsend, Hovde Boyd W. Scott F. appellees counsel, Indianapolis, Smith for Townsend, all of of Steckbeck, Moore, A. C. Steckbeck David William Jessee. appellee Company. Moore, Indianapolis, all of & Petition to Transfer On decedent, 7, 1967, On February Wil- J. Givan, injuries accidental received as a of died result lard by Riss & during operation of a truck owned in this is whether question case for decision The Inc. Express, considered was also to be Transport Motor operating he reason of fact was employer of Jessee agent him as for Riss been leased had which a truck single purposes Inc. for of trip. three were Jessee’s widow and his plaintiffs below
The dependent time chilrden, was his each of whom minor his death. of
(cid:127) reviewing Appeals which we are opinion The of the Court reported 4, 1972, December today down handed reported prior opinion 34 Dec. 42. Ind. 289 N.E.2d Appeals in 279 N.E.2d Court of Ind. Dec. stating returned case to that this the Industrial Board directing findings Board’s of fact were insufficient and findings support that the Board make additional of fact specific enough permit Appeals its award and Court “intelligently to review said award.” pursuant
The Board, opinion by Industrial to the Court Appeals, findings However, additional of fact. submitted Appeals in the decision which we are now reviewing findings that still contends even these additional of fact the Industrial submitted Board are insufficient for disagree proper Appeals review. We with the Court examining find fact Industrial findings do, fact, those Board that meet the standards which Appeals’ in the Court set out decision and agree. we correctly has law, stated the but apply
has failed to law to the facts in the case at bar. *3 by The amended filed fact Industrial Board caption Appeals, omitting signatures, with the Court of reads as follows: March, “BE IT REMEMBERED, day that on the . 1st 1972, Appeals to (Second District) of Indiana Indiana,
rendered in which said directive the Full Industrial directive the Full Industrial Board of Indiana Board of certify finding was directed to to the said Court of upon of facts conformity Board Award in based. said cause was directive, said said Full Industrial following finding makes Indiana now of facts: February 7, 1967, approximately in “On 3:45 A.M. plaintiff’s County, Illinois, decedent, Will James Willard Jessee, proximate personal died as a result of accidental injuries 7, 1967, February received him on in Will County, Illinois. injuries causing Jessee death “The to James Willard his between the rear semi- when he was crushed of a occurred semi-trailer in Will County, cab of a Illinois. trailer and the death, em- James Willard “At the time of his Jessee was wage average weekly excess of ployed at an maximum. wife, Delores his “James Willard Jessee was survived children, Michael Smith, born March Jessee James and three minor Wayne Jessee, 1961; born Jessee, August 10, 1962; 27, Kenneth September and Gina Renee born 19, 1966, wholly dependent James each of whom was Jessee at the time of his said death. Willard Transport Express, & “Defendants Motor Inc. and Riss Company, knowledge Inc. each had actual of the decedent’s injuries February on or and death about being by Transport advised Express, “After Inc. Motor availability transported of material to be Crane from Depot Crane, Indiana, Naval sent on McAlester, Oklahoma, No. 645 which was owned James Jessee. was Willard February 3, 1967, by Company, Riss & from Inc. Haute, to Indiana, Terre Tractor Leasing H. Corp. J. & permanently Company, leased it Riss to & Inc. dispatched. by “At time James Willard Jessee was Company, Haute, to Terre Indiana, Inc. it intended James Jessee lease Willard himself Transport pro- to Express, Motor Inc. and Haute, Indiana, Crane, Indiana, Terre ceed from where explosives transport he would load which he would then Joliet, Illinois. Inc., Company, & “Riss at all times, relevant no had Interstate Commerce Commission or Public Service Com- carry explosives mission Crane, in Indiana or between Indiana, Joliet, Illinois. Express, “Transport Motor Inc. at all times relevant Commerce and Public had Interstate Service Commission operating authority explosives carry of Indiana Crane, from Indiana, Joliet, Illinois. Company, place Inc. & terminal “Riss no or Indiana, Haute, Crane, Indiana, Terre or business Transport Joliet, Illinois. Motor Inc. termi- had a Haute, Indiana, Joliet, nal in Terre Illinois. February or about Jessee “On Willard freight Ex- reported terminal of to the Haute, Indiana, and, on Riss press, & behalf of Terre agreement. Inc., He entered into *4 placards Transport Express, Motor acquired from Inc. then driving placed tractor which on he was and the which were Express, Transport Inc. as the lessee of the Motor showed equipment set forth Interstate and Commerce Com- and Public Service Commission of Indiana numbers mission authorizing Crane, Indiana, to and from the travel numbers Express, to Transport Inc. and Motor question. transport explosives and trailer “James Willard then the tractor Jessee drove Indiana, Crane, subject trip lease to were the explosives. was where the trailer loaded with “James Jessee’s trip Willard destination under the lease freight Transport Express, Inc. was terminal of Motor Illinois, Joliet, point trip at which was terminate. aforesaid, “At the time of his death as Willard James Transport Jessee was still enroute to the terminal Motor Express, Joliet, Illinois, completed Inc. and not called for said lease. operating trip lease, “While under the said James Willard required by Transport Jessee Express, Inc. to was Motor prescribed log keep follow travel route of and to Transport his activities which was Motor furnished to Express, Inc. “During lease, Transport Express, Inc. Motor right stop equipment had the require replacement and driver the driver or for either regulations. violation of ICC rules and PSCI “Plaintiff, Jessee, individually Ann behalf Delores on children, Jessee, of her Jessee and Kenneth Michael Renee minor Gina Wayne compro- into a entered agreement Company, mise settlement Texas with Riss & through insurer, Security Casualty its Mutual Inc., Company, whereby Company, paid Ann Delores behalf, plus Jessee the sum of her own $500.00 on $5200.04 expenses, for reimbursement of funeral and $5515.04 children, compromise and on behalf of the ing hav- minor said approved been Industrial Accident Board July 14, F62408, State of Texas Claim on Cause No. No. 97229. liability Transport Express, “The of defendant Motor proceedings plaintiffs
Inc. inbefore described and such here- was an issue in the adjudicated liability was not proceeding. injuries causing “At the time of the Febru- his death on ary of both Inc., decedent James Willard Jessee was an Inc. and Riss & scope course said he within the employment. equal portions statu- pay “Both defendants should tory expense up funeral maximum $750.00. *5 46 defendants, against recovery “Plaintiffs are entitled to a application.- them, plaintiffs’ filed Form and each on 5,1969.
February against Company a Riss is entitled to credit “Defendant & pur- paid plaintiffs liability it hereunder the sums its suant to the Industrial Accident Board of the order of previous finding hereof.” a Texas described State Appeals position that the above takes the The Court they fatally are defective because fail of fact parties as the “factual dispute between resolve agreement when be drawn from inferences” to agreement took reference to what considered with that is execution. and after its place before terminology “factual Appeals has used The Court of legal referring they actually con- when are inferences” stated may from facts as clusions which be drawn Board. Industrial Appeals Board did The Court of contends the Industrial TMX now con- not inferences” which resolve “factual tends should have from an examination been concluded “mere TMX contends the lease is a the lease instrument. fiction,” necessary TMX “some' device made what calls a regulation attempt public some ICC.” The archaic argument present is not new our courts. carriers to such an Transport Company, Daniels Terminal Inc. and Borin- In (1954), App. 28, stein 125 Ind. 119 N.E.2d argument. responded Appeals identical case to an that page Court stated at 34: operator freight “It seems inconsistent for the of a motor agreements transportation line to execute written employment reference and the to drivers their thereof under satisfy requirements in order to Inter- control of the state Commerce Commission and ignore to ask courts to then agreements they the terms of such con- when are determining purpose of whether sidered for driver of a truck under the Workmen’s Compensation law.” question there us is whether or not sufficient before findings by its the Industrial Board facts set out judicial or this Court can render applicable as determination to the law to such facts. When we examine see the facts filed Industrial Board we they find: dispatched by That the decedent was the intent Riss with lease himself and his to TMX. n 2. That Riss at time had no Interstate Commerce carry Commission or Public Service Commission explosives in Indiana over the in this case. distances
3. That TMX had Interstate Commerce and Service Public *6 cargo Commission for the and route involved the in this case.
4. That Riss had no terminal Terre in Haute and TMX Joliet, did have a terminal in Terre and one in Haute Illinois.
5. February 5, That 1967, reported on the the decedent to Terre Haute terminal trip TMX of where he into a entered agreement lease Riss, on pursuant behalf of he to which acquired placards TMX placed which were vehicle. on the placards Those showed TMX to be the the lessee and carried Interstate Commerce Commission numbers and Public Service Commission numbers.
6. The subject decedent then drove the truck which was to agreement trip the Crane, Indiana, lease to was where it explosives. loaded with agreement
7. Decedent’s trip destination the under lease was Joliet, Illinois, the TMX terminal point at which the trip was lease to terminate.
8. At the time of his death, decedent was enroute from Crane, Indiana, Illinois, to the TMX Joliet, terminal and completed trip .had not the called for terms the of the lease. operating
9. While agreement, under the lease the required by specific decedent was TMX to follow a and route log keep of his activities which to TMX. furnished 48
n right During stop the TMX 10. require replacement either Of driver any equipment for of ICC PSC driver or violation regulations. rules and System Truck M.F. case of Jackson Co. Interstate v.
(1952), App. 575, 122 546, 104 Ind. N.E.2d reciting Appeals, after almost an set of as identical facts out, page following: set above 557 stated light facts, the above “In we constrained was, fact, employee both hold that the an decedent appellant appellee As Interstate. Jackson Furlong, v. Admx. stated this court in case of Jones (1951), 279, 293, App. 97 Ind. N.E.2d 375: “ person act not inconsistent the same ‘It aspects person employee of one certain as an employee another different in a transaction and as (1933), 283 part business. McDermott’s Case 77, 186 cited.’ N.E. cases Mass. employers so that, that both are inconsistent where two “Neither is it together direct control themselves associate of both, employee is made accountable to he will and he employers considered an both be both will chargeable responsibilities of jointly be with the Long employment.” also See Sims App. 504, (1954), 124 Ind. N.E.2d et al. Co. case, perceive any have this if there are facts which As we they Board, omitted of the Industrial been *7 merely any It is to conceive be incidental. difficult of would change could to those recited which would fact which be added by legal pointed found the Board. As conclusions out Daniels, supra, this in neither Appeals should nor the Court of concern itself “facts” argued by trucking presented and com- which had been regulations archaic, are pany that and a ICC long fact, requires is'not, as in a lease so ICC such leases long they as are executed in the manner so and used findings of fact the Industrial Board. described fact, joint parties are, case as matter of In this recognize employers of the driver of We that as vehicle. decisions, previous stated cases this nature must be of arrangements facts, their decided and that different might However, be made in different leases. recited facts quite ample application existing in this case are for the law. is, therefore, granted, Transfer the decision is Industrial Board sustained.
Arterburn, C.J., Hunter, J., concur; DeBruler, J., dis- opinion Prentice, sents with J., which concurs.
Dissenting Opinion missing J. There are three elements from these DeBruler, findings facts, presence of which necessary are findings sufficiently specific render the permit a rational properly limited court review. findings identify 1. The do produced not which facts Board’s conclusion that James Jessee an Transport Express Motor at the time of the accident. The findings facts, merely found, a list all facts stated chronological sequence. findings inferences, The do not include factual reading indicates, of them had to have made been order the Board to have reached its for determination a rela- tionship employment as defined the Indiana Workmen’s Compensation 1971, 22-3-6-1, being Act of IC Burns 40-1701, between Transport existed James Jessee and Motor § finding, Express. example agree- There is no for that the lease between Riss & ment reached Express
Transport reality Motor was in hire, a contract of paid by Transport Jessee was be that James Ex- Motor press his services. findings
3. The do not reveal to the reader the factual underlying theory its determination that James Jessee was Express. significance employee of The to the Board attributed various which the opinion majority formulating is erroneous its stated. theory identifying and then factual facts which the own *8 supportive application deems Court a successful theory. This is the function and work of the Board and not a court on review. Appeals correctly
The Court of remanded case to specification Board further of facts. above,
For the reasons stated and for the additional reason I do not consider this case to fall within the framework jurisdiction of our transfer since the Second District has not decided the case on merits adversely party, to either I cannot disposition concur in the by majority. of this case made Prentice, J., concurs.
Note.—Reported at
John P. Jr. and Arlene L. Smeekens Helen Bertrand, S. Bertrand and Edmour H. Company.
and The Wolverine Insurance May 574S103. [No. Filed 1974.]