Broderick Co. v. Flemming
| Decision Date | 06 March 1946 |
| Docket Number | 17448. |
| Citation | 65 N.E.2d 257,116 Ind.App. 668 |
| Parties | BRODERICK CO. v. FLEMMING et al. |
| Court | Indiana Appellate Court |
Appeal from Industrial Board.
George C. Forrey, III, Burrell Wright, and Jacob S. White, all of Indianapolis, for appellant.
Benadum & Cecil, of Muncie, for appellees.
This is an appeal from an award rendered by the Full Industrial Board of Indiana in favor of the appellees as the surviving dependents of one George Flemming, deceased, who was accidentally killed on May 13, 1944, during the course of his employment with the appellant.
The sole question presented for our determination is whether there exists in the record any evidence from which the Industrial Board could properly have determined that the accidental death of George Flemming 'arose out of the employment.'
The evidence is uncontroverted and establishes the following facts:
On, and for at least two months prior to, May 13, 1944, the deceased George Flemming, was in the employ of appellant at its plant located at Muncie, Indiana. He was employed as a general cleanup man, and a part of his duties consisted in assisting one Fred Meer in hauling waste grease contained in a large metal tank from the premises of appellant to a dump north of the city of Muncie. Meer was an independent contractor employed by appellant to haul waste grease and other liquid refuse from appellant's premises and for such purpose he owned and operated a Ford V-8, one and one-half ton dump motor truck.
Appellant always sent one of its employees with Meer to assist in scraping the waste grease out of the tank at the dumping place. George Flemming had accompanied Meer and assisted him in hauling and unloading waste grease upon several occasions prior to May 13, 1944. The helper always rode with Meer in the cab of his truck upon such occasions. During the morning of May 13, 1944, the deceased, George Flemming, had been working with another employee in appellant's plant when a breakdown of machinery left him temporarily out of a job. Flemming went to his foreman and reported that he had broken down and inquired: 'What do you want me to do now?' The foreman told Flemming: 'If you are done, go up to the front end and get the big grease tank and hook onto it good and straight and carry it down and set it by the west door and wait till Fred takes this last load of carbide out and changes the tank and empties that and you put that tank on and go with him to Nottingham dump and help clean it out.' Pursuant to these orders Flemming entered appellant's plant, attached a large moving crane to the waste grease tank referred to by the foreman, and moved the grease tank to the west door of appellant's building and set it down at the door to wait until Meer came with his truck to load and then go to the Nottingham Dump.
The conversation between Flemming and his foreman occurred about twenty minutes before the accident hereinafter referred to.
After depositing the grease tank at the west door of the building as directed, Flemming stepped outside the plant and seated himself beside two other employees who were taking a fifteen-minute rest as permitted by appellant's working rules and regulations.
When Flemming sat down outside of the west door, he inquired of one of the employees whether or not 'Fred [Meer] had been in,' to which question the employee replied: 'No not as I know of.' A few minutes after this conversation a motor oil truck entered appellant's premises and traveled east along a driveway which ran east and west through appellant's plant premises. This motor truck was described as being a Chevrolet semi-tractor job, having six wheels and a built-on oil tank approximately 25 feet in length with a red cab on the tractor and the oil tank painted aluminum.
When the oil truck entered the premises, the deceased arose without saying anything to his fellow employees, and walked or ran across the yard space between appellant's building, where he had been sitting awaiting for Meer to appear, and the driveway upon which the truck was traveling east through appellant's premises, across the driveway in front of the oil truck and waited for it to approach. There is no evidence in the record showing the speed at which the oil truck was traveling. The only eyewitness to testify stated that, as the truck approached, Flemming threw up one of his hands as if to reach for something, then he was seen to fall, and the wheels of the oil truck ran over Flemming, crushing his skull and killing him instantly.
No witness testified to hearing Flemming call or say anything to the truck driver, and there is no direct evidence as to Flemming's motive or purpose in passing in front of the oil truck and throwing up his hand as the truck approached.
The oil truck belonged to a firm at Portland and was delivering a load of fuel oil to appellant's plant. This same truck had made several trips through appellant's premises prior to May 13, 1944, and there was no evidence in the record to show that Flemming and the driver of the truck were acquainted with each other. The evidence discloses that from the time Flemming was ordered by the foreman to place the grease tank at the west door of appellant's building until he met with the fatal accident, a period of approximately twenty minutes elapsed, and that during said period of time he had no work or duties to perform except to wait until Fred Meer drove in with his dump truck. Flemming had not been told to wait at any particular place. He had traveled a distance of approximately 125 feet from the west door, where he was seated waiting for the Meer truck, to the place where he met his death.
The fatal accident occurred at about 1:50 p. m., May 13, 1944, at a place upon the appellant's premises where Flemming was employed and during his working hours and while he was about appellant's business, although his duties did not require his presence at the particular spot where he met with the fatal accident and there is no direct evidence to explain why Flemming went to that particular place.
The foregoing facts are sufficient to sustain the finding of the Full Industrial Board that the death of appellant's employee, George Flemming, was a result of an accident and that such accident arose in the course of his employment.
This leaves for determination the sole question of whether the fatal injuries 'arose out of' his employment.
Appellant contends that Flemming's accidental death did not 'arise out of the employment' for the reason that he had stepped out of his employment when he went across the driveway in front of the approaching oil truck. This contention is based upon the premise that, because there is no direct evidence in the record to explain why Flemming went to the place where the accident occurred, the only inference to be drawn from the evidence is that he had some personal reason for going to a spot where he had no duty to perform at that particular time and place.
The words 'arising out of * * * the employment,' as contained in the Indiana Workmen's Compensation Act, § 40-1202 et seq., Burns' 1940 Repl., have been construed by this court many times, and we feel that it will be helpful in determining the question presented to review a few of the decisions.
In the case of Holland, etc., Sugar Co. v. Shraluka, 1917, 64 Ind.App. 545, 116 N.E. 330, 331, the facts were that an employee was working on the third floor of the employer's premises when another person on the second floor of the building called to him and informed him that he was wanted at the telephone. In response to this call the employee started to walk down the stairway from the third to the second floor and in so doing slipped and fell and was injured. In passing upon the correctness of an award made by the Full Industrial Board, awarding compensation to the employee, this court said:
'The courts are practically unanimous in holding that the words 'by accident arising out of and in the course of the employment,' as used in the Workmen's Compensation Acts, should be given a broad and liberal construction in order that the humane purpose of their enactment may be realized. * * *
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