Burroughs Adding Mach. Co. v. Dehn

• Decision Date: 13 February 1942
• Docket Number: 16832.
• Citation: 39 N.E.2d 499,110 Ind.App. 483
• Parties: BURROUGHS ADDING MACH. CO. v. DEHN.
• Court: Indiana Appellate Court

39 N.E.2d 499

110 Ind.App. 483

BURROUGHS ADDING MACH. CO. v. DEHN.

No. 16832.

Appellate Court of Indiana, in Banc.

February 13, 1942

White Wright & Boleman and Joseph A. Wicker, all of Indianapolis, for appellant.

Anderson Mayfield, Wilhite & Moberly, of Indianapolis, for appellee.

BEDWELL Presiding Judge.

On the 26th day of December, 1940, the appellee, Ray J. Dehn, was temporarily totally disabled while performing duties that he was employed by the appellant, Burroughs Adding Machine Company, to perform. The hearing member and a majority of the full Industrial Board awarded him compensation.

The sole question for determination by the Industrial Board was whether the disability of appellee, which without question occurred "in the course of his employment", was the result of "an injury by accident arising out of his employment." The sole questions for our determination are whether there exists in the record any evidence from which the Industrial Board could properly have determined that the disability of appellee was the result of an injury by "accident" and if such is answered in the affirmative, that such injury by accident "arose out of the employment."

The appellee was the only witness that testified at the trial of the cause. His evidence disclosed that on the date of his injury he was employed by appellant as a sales supervisor and that the duties of his employment required him to make business calls at various firms to sell appellant's products; that on such date, which was December 26, 1940, at about 12:30 o'clock at noon, he was walking west on the south side of Maryland Street between Pennsylvania Street and Meridian Street and at the side of the Big Four Building, all in the City of Indianapolis, Indiana, for the purpose of making a business call at the Peerless Electric Company on South Meridian Street in such city. That while so located he received an injury to the right side of his head about three inches above the ear and that his skull was fractured thereby; that he was rendered unconscious and has no remembrance concerning the particular events connected with the injury. The following questions and answers by appellee at the trial before the hearing member of the Industrial Board are shown by the record:

"Q. State if you can what caused your injury? A. It is pretty hard to say. The best that I can judge some something must have fallen off of the building, or out of the building Big Four Building, or a stone was kicked up from a passing car or truck.

"Q. You do not know definitely what caused your injury? A. Absolutely not."

Upon cross-examination when appellee was questioned concerning the cause of his injury, the questions and answers are as follows:

"Q. Now, Mr. Dehn, you were asked what caused you to fall on this side-walk, and you testified that you thought something fell, or a stone was kicked up by a passing car, now, have you anything to base that on except your conjecture, or your possibility? A. No, sir. The other people, as I understand, that saw me laying there, that, they assumed someway the same.

"Q. Were you able to find any one at all who saw anything like that occur? A. No, sir.

* * *

"Q. Now, you as a matter of fact, you don't know at all what caused you to fall? A. No, sir.

"Q. You can't say whether you were struck by anything, or whether you fainted, or anything of that kind. As a matter of fact, you simply don't know? A. I was in good health walking along the street with all my faculties, made several business calls in the morning, and the next thing I come to in the hospital in the afternoon, late in the afternoon.

"Q. Was the side-walk crowded at the time? A. I don't recall of it being excessively crowded.

"Q. You have no recollection of anyone bumping into you? A. Naturally not, no, sir.

"Q. You have no recollection of slipping, or stumbling? A. No, sir.

"Q. You have no definite recollection of anything striking you? A. Naturally not, sir, no.

"Q. You have no recollection of fainting, or suffering any attack, or illness, or anything of that nature? A. No, sir.

"Q. So the fact is you don't know at all what caused you to fall. That is the substance of it? A. No, sir.

"Q. And this injury you had, this fractured skull, you don't know whether that was sustained before, or when you struck the side-walk? A. Naturally not. I was unconscious, and I couldn't say.

* * *

"Q. Have you ever fallen in that manner before? A. Never, sir.

"Q. Ever suffered any fainting spells that caused you to fall, or attacks that caused you to fall before? A. No, sir, I have always been in the best of health."

Section 2 of our Workmen's Compensation Act, Acts 1929, ch. 172, sec. 2, p. 536, Acts of 1937, ch. 214, sec. 7, p. 1067, Burns' R.S.1933, sec. 40-1202, Baldwin's Indiana Statutes, sec. 16378, p. 3596, provides that: "Every employer and every employee, except as herein stated, shall be presumed to have accepted the provisions of this act respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment, and shall be bound thereby; * * *." (Our italics.)

While this language is simple and apparently plain in meaning, the judicial construction and interpretation thereof has been such that it is most difficult to determine whether certain injuries were the result of "accident" or whether they "arose out of" the employment of the injured workman. Workmen's Compensation Laws are now in force in forty-six states and in Alaska, Porto Rico, District of Columbia and Hawaii. In addition there is a Federal Compensation Act applying to civil employees of the government and to soldiers and sailors and an act which covers maritime employments. The compensation acts of North Dakota, Pennsylvania, Texas and Washington cover injuries incurred "in the course of the employment." The Wisconsin Act covers injuries sustained in performing services growing out of and incidental to the employment. The Utah Act covers injuries "arising out of or in the course of the employment." All the other acts--although a few use different phraseology--cover only injuries "arising out of and in the course of the employment." The majority of the compensation acts, by their terms, cover only "injuries by accident", but the Acts of California, Iowa and Massachusetts cover "injuries" indefinitely. The Wisconsin Act covers mental or physical harm caused by accident or disease.

The word "accident" used in our Workmen's Compensation Act is used in its popular sense, and means "any unlooked for mishap or untoward event not expected or designed." Haskell & Barker Car Co. v. Brown, 1917, 67 Ind.App. 178, 117 N.E. 555, 557; Indian Creek Coal & Mining Co. v. Calvert, 1918, 68 Ind.App. 474, 119 N.E. 519, 120 N.E. 709; Board of Commissioners of Greene County v. Shertzer, 1920, 73 Ind.App. 589, 127 N.E. 843; Stacey Bros. Gas Construction Co. v. Massey, 1931, 92 Ind.App. 348, 175 N.E. 368; General Printing Corp. v. Umback, Adm'x, 1935, 100 Ind.App. 285, 195 N.E. 281; Cunningham v. Warner Gear Co., 1936, 101 Ind.App. 220, 198 N.E. 808; Studebaker Corp. v. Jones, 1937, 104 Ind.App. 270, 10 N.E.2d 747; American Maize Products Co. v. Nichiporchik, 1940, 108 Ind.App. 502, 29 N. E.2d 801.

In the case of Board of Commissioners of Greene County v. Shertzer, supra, the workman, who was a painter and paperhanger, was employed by appellant to do some papering and painting at the county poor asylum. A few minutes after he had eaten a hearty meal, and while doing such work, he fell from a ladder upon which he was standing to the floor of the room, and as a result of the injuries thus received he died ten days later. When asked how he came to fall he replied that he "became dizzy, and seemed to be going round and round." [73 Ind.App. 589, 127 N.E. 844.] The physician who attended him stated that dizziness such as was complained of by Shertzer might have been the result of eating an excessive meal. This court held that if it was conceded that Shertzer's fall was the result of vertigo, it does not necessarily follow that the cause of his death was the disease, and that the question of whether or not the death of the employee was the result of an accident arising out of his employment was a question for the Industrial Board.

In Miller v. Beil, 1921, 75 Ind.App. 13, 129 N.E. 493, it was necessary for a workman employed to haul water in a water tank drawn by horses, to stand on the top of the tank, which was seven and one-half feet long, three feet wide and twenty-eight inches deep, with an opening in the top twenty-three inches square, to fill the same with water by a pump. The lifeless body of the workman was found in the tank a short time after he had gone in the course of his employment to get water. The employee who thus lost his life was subject to epilepsy. This court held that the question of whether or not the death of the employee was a result of an accident arising out of his employment was a question of fact for the Industrial Board. In the course of its opinion the court says: "There is no direct evidence that appellee's decedent fell in the tank as a result of an epileptic fit, and we cannot say that the Industrial Board found that appellee's decedent, at the time of his death, fell as a result of the disease of epilepsy. There is authority, however, which would support the award even if the board had so found."

We hold that the evidence was sufficient to sustain the finding of the Industrial Board that the injury of appellee was the result of an accident.

This leaves for determination the question of whether the injury "arose out of" the employment of appellee. Speaking generally, an injury arises out of the employment when there exists a causal connection between it...